IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Eldar Z. Veliev, 

Petitioner, 

v. Case No. 2:12-cv-346

 JUDGE MICHAEL H. WATSON

Warden, Chillicothe Correctional Magistrate Judge Kemp

Institution,

Respondent. 

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. §2254. This matter is before the Court on that petition,

respondent's return of writ, and the exhibits attached to the return. Also before the

Court is a motion for leave to amend the petition. For the reasons that follow, the

Magistrate Judge RECOMMENDS that the motion for leave to amend be DENIED and

petitioner's claims be DISMISSED.

I. PROCEDURAL HISTORY

On July 11, 2008, a Franklin County, Ohio grand jury returned a two-count

indictment against petitioner and his co-defendant charging felonious assault and

attempted murder. Motion to Dismiss (Doc. 10), Exhibits 1 and 2. Petitioner pleaded not

guilty and was tried by a jury jointly with his co-defendant. Id. , Exhibits 3 - 6. On

September 3, 2009, the jury convicted him of both charges. Id., Exhibits 7 - 9. On

October 22, 2009, the trial judge merged petitioner’s sentences and imposed a sentence 

of eight years on the conviction for attempted murder. Id., Exhibits 8 and 9. 

Petitioner timely appealed his conviction to the Court of Appeals for the Tenth

Appellate District. Motion to Dismiss, Exhibits 10 and 11. He raised seven assignments of

error, as follows:

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1. The trial court improperly excluded defense witnesses under

Evidence Rules 404 and 608 that rebutted the State's

characterizations of an alleged victims [sic] good character, thereby

violating Appellant's right to present a meaningful defense as

guaranteed by the Compulsory Process Clause of the Sixth Amendment,

the Due Process clause of the Fourteenth Amendment to the United States

Constitution, and Article I, Section 10 of the Ohio Constitution. (Tr. Trn.

Vol., IV, Pg. 186-187)

2. The trial court improperly quashed Appellant's subpoena of an [sic]

non-confidential criminal investigation that rebutted the State's

characterizations of an alleged victims [sic] good character, thereby

violating Appellant's right to present a full defense as guaranteed

by the Compulsory Process Clause of the Sixth Amendment, the

Due Process clause of the Fourteenth Amendment to the United

States Constitution, and Article I, Section 10 of the Ohio

Constitution. (Tr. Trn. Vol. I, Pg. 86)

3. The trial court improperly quashed Appellant's subpoena of an [sic]

non-confidential criminal investigation that rebutted the State's

characterizations of an alleged victims [sic] good character, thereby

violating the Due Process clause of the Fourteenth Amendment

and comparable provisions of the Ohio Constitution. (Tr. Trn. Vol. I,

Pg. 86)

4. The trial court improperly limited Appellant’s cross-examination and

implied in the presence of the jury that Appellant should testify at trial,

thereby violating Appellant’s Fifth Amendment right to remain silent,

Sixth Amendment right to a trial by jury and Sixth Amendment right to

confront his accusers, the Due Process clause of the Fourteenth

Amendment and comparable provisions of the Ohio Constitution (Tr. Trn.

Vol., IV, Pg. 82)

5. The court improperly excluded evidence that rebutted Arut

Koulian's assertions that his motive for leaving town was due to

threats fromAmbartsoumov’s family with evidence of his financial

difficulty, thereby violating Appellant's right to present a meaningful

defense as guaranteed by the Compulsory Process Clause of the

Sixth Amendment, the Due Process clause of the Fourteenth

Amendment to the United States Constitution, and Article I, Section

10 of the Ohio Constitution. (Tr. Trn. Vol. I, Pg. 225-226)

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6. The trial court erred in overruling Appellant's motion for a mistrial

when the state elicited testimony from two Columbus Police

Officers that Appellant’s co-defendant did not tell them how he cut his

hand and that he did not tell them he was a victim of an assault and thus

commenting on his constitutional right to remain silent, thereby

violating Appellant's Fifth Amendment right to remain silent, and his

right to Due Process under the Fourteenth Amendment. (Tr. Trn.

Vol. II, Pg.13)

7. The trial court violated Appellant's right to Due Process as

Guaranteed by the Fourteenth Amendment to the United States

Constitution and Article I, Section 10 of the Ohio Constitution by

entering verdicts of Guilty, as the jury's verdict was against the

manifest weight of the evidence. (Tr. Trn. Vol. V, Pg. 132)

Motion to Dismiss, Exhibits 13 and 14. In a decision dated December 23, 2010, the Tenth

District Court of Appeals overruled the assignments of error and affirmed Petitioner's

conviction. State v. Veliev, 2010 WL 5449848 (Franklin Co. App. December 23, 2010). 

On February 2, 2011, Petitioner, represented by new counsel, filed an appeal with

the Ohio Supreme Court. Motion to Dismiss, Exhibit 18. In his memorandum in support

of jurisdiction, he raised eight propositions of law, as follows:

1. Appellant's right to present a defense was violated when the trial

court refused to permit the defense to refute assertions by one of

the State's key witnesses that he was an upstanding community

leader and had never been involved in illicit activity.

2. Appellant's right to present a defense was violated when the trial

court quashed Appellant's subpoena of a non-confidential criminal

investigation that rebutted the State's characterizations of a witness'

good character.

3. When the Appellant's subpoena of a non-confidential criminal

investigation rebutting the State's characterizations of a witness'

good character was quashed by the trial court it effectively denied

Appellant the opportunity to prove that the Prosecution violated its

disclosure duties under Crim. R.16 and Brady v. Maryland, 373 U.S.

83 (1963).

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4. An accused has the right to test the reliability of witnesses through

cross-examination on all relevant matters.

5. When a defendant chooses not to testify, the Fifth Amendment

prohibits the trial judge from making adverse comments about the

defendant’s decision to not testify. Griffin v. California, 380 U.S. 609, 614-15

(1965), followed.

6. Appellant's right to present a defense was violated when the trial

court refuse to permit the defendant to put on evidence concerning

the State's witness' motive for fleeing the country.

7. A defendant's post arrest silence cannot be used as substantive

evidence against him at trial. Miranda v. Arizona, 384 U.S. 436, 468

n. 37 (1966), followed.

8. In reviewing claims of whether a verdict is against the manifest

weight of the evidence it is not relevant whether the jury is in the

best position to consider inconsistencies in testimony because an

appellate court sits as the thirteenth juror and may disagree with

the fact-finder's resolution of the conflicting testimony. State v.Wilson, 113

Ohio St.3d 382, 2007-Ohio-2202, ¶25 followed .

Id., Exhibit 19. On April 20, 2011, the Ohio Supreme Court dismissed the appeal as not

involving any substantial constitutional question. Id., Exhibit 21.

On March 17, 2011, Petitioner filed an application to reopen his direct appeal

pursuant to Appellate Rule 26(B). In his application, he alleged that his appellate

counsel was ineffective for failing to raise the following assignments of error:

1. Defense counsel rendered ineffective assistance when they failed

to object to the admission of evidence concerning victim Tigran

Safaryan's character during the prosecution's case-in-chief where

the defendant had not yet put on his case or otherwise put on any

evidence concerning the victim's character in violation of

defendant's rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and corresponding

provisions of the Ohio Constitution. (TR. Vol. 1, pp.37-41).

2. The trial court erred when it allowed victim Safaryan to testify over

objection why he was "cautious" of defendant Ambartsoumov in

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violation of defendant's rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and corresponding

provisions of the Ohio Constitution. (TR. Vol. 1, p. 71).

3. The trial court erred when it permitted Safaryan's cousin, Sabina

Shvets, to testify over objection as to the reasons why Safaryan

was cautious of Ambartsoumov in violation of defendant's rights

under the Fifth, Sixth, and Fourteenth Amendments to the United

States Constitution and corresponding provisions of the Ohio

Constitution. (TR. Vol. 3, pp. 77-95).

4. The trial court erred to the prejudice of the defendants when it used

the wrong standard in deciding the discoverability of materials

sought by the defense under Crim. R.16(B)(1)(f) in violation of

defendant's rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and corresponding

provisions of the Ohio Constitution. (TR. Vol. 1, pp. 100-101).

5. Defense counsel rendered ineffective assistance when they failed

to object to the admission of evidence of the victim Arut Khoulian's

character during the prosecution's case in chief where the

defendant had not yet put on his case or otherwise put on any

evidence concerning the victim's character in violation of

defendant's rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and corresponding

provisions of the Ohio Constitution. (TR. Vol. 1, pp.119-122).

6. Defense counsel rendered ineffective assistance when they failed

to cross-examine Tigran Safaryan about inconsistent statements he

made to medical personnel concerning how the confrontation

started that resulted in his wound in violation of defendant's rights

under the Fifth, Sixth, and Fourteenth Amendments to the United

States Constitution and corresponding provisions of the Ohio

Constitution. (TR. Vol. 1, pp.105-113).

7. The trial court erred when it overruled the defense motion for a

continuance to subpoena Tigran Safaryan in order to question him

about statement he made to emergency room personnel in violation

of defendant's rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and corresponding

provisions of the Ohio Constitution. (TR. Vol. 4, p. 29).

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8. The trial court erred in refusing to allow the defense to play a video

tape recording of Ambartsoumov's statement to the police in

violation of defendant's rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and corresponding

provisions of the Ohio Constitution. (TR. Vol. 4, p. 56).

9. Trial counsel rendered ineffective assistance when they failed to

introduce during cross-examination of Detective Siniff portions of the

interview with Ambartsoumov in violation of defendant's rights

under the Fifth, Sixth, and Fourteenth Amendments to the United

States Constitution and corresponding provisions of the Ohio

Constitution. (TR. Vol. 2, pp.160-180).

10. Trial counsel rendered ineffective assistance when they failed to

introduce, pursuant to Evid.R.801(D)(1)(b), Ambartsoumov's

statement to the Detective Siniff indicating how he was cut the night

of the incident in order to rebut the prosecution's charge against

Ambartsoumov that he never explained to the police how he got cut

during the incident in violation of defendant's rights under the Fifth,

Sixth, and Fourteenth Amendments to the United States

Constitution and corresponding provisions of the Ohio Constitution.

(TR. Vol. 4, p.56).

On January 24, 2012, the Tenth District Court of Appeals denied the application

to re-open the appeal. Motion to Dismiss, Exhibits 25 and 26. Petitioner appealed this

decision to the Ohio Supreme Court. Id., Exhibit 28. On May 9, 2012, the Ohio Supreme

Court dismissed the appeal as not involving any substantial constitutional question. Id.,

Exhibit 31. 

On April 18, 2012, Petitioner filed a motion for leave to file a delayed motion for

a new trial in the Common Pleas Court of Franklin County, Ohio. Motion to Dismiss,

Exhibit 32. On August 10, 2012, Petitioner filed an amended motion. Return of Writ

(Doc. 18), Exhibit 35. On September 12, 2012, the trial court denied the motion, as

amended, as untimely. Id., Exhibit 37. On October 10, 2012, Petitioner filed an appeal

with the Tenth District Court of Appeals challenging the trial court's denial of this

motion. Id., Exhibits 39 and 42. On July 11, 2013, the Court of Appeals affirmed the

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denial of leave to file a delayed motion for a new trial. (Doc. 19). 

Also on April 18, 2012, Petitioner, through counsel, timely presented his petition

for a writ of habeas corpus to this Court. In his petition, he raised the following

grounds for relief, stated here exactly as they appear in the petition:

Ground One:

Eldar Z. Veliev’s right to present a defense was violated when the trial

court refused to permit the defense to refute assertions by one of the

State's key witnesses that he was an upstanding community leader and

had never been involved in illicit activity. The state court resolution of

this ground was an unreasonable application of or contrary to United

States Supreme Court precedent.

Ground Two:

Eldar Z. Veliev's right to present a defense was violated when the trial

court quashed his subpoena of records concerning a non-confidential

criminal investigation which rebutted the State's characterizations of a

witness' good character. The state court resolution of this ground was an

unreasonable application of or contrary to United States Supreme Court

precedent.

Ground Three:

When the subpoena of a non-confidential criminal investigation rebutting

the State's characterizations of a witness' good character was quashed by

the trial court it effectively denied Ambartsoumov the opportunity to

prove that the Prosecution violated its disclosure duties under Brady v.

Maryland, 373 U.S. 83 (1963). The state court resolution of this ground was

an unreasonable application of or contrary to United States Supreme

Court precedent.

Ground Four:

Eldar Z. Veliev was denied the right to test the reliability of witnesses

through cross-examination on all relevant matters. The state court

resolution of this ground was an unreasonable application of or contrary

to United States Supreme Court precedent.

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Ground Five:

Eldar Z. Veliev chose not to testify at trial and the trial judge made

adverse comments about his decision not to testify. The state court

adjudication of this claim was an unreasonable application of or contrary

to United States Supreme Court precedent.

Ground Six:

Eldar Z. Veliev's right to present a defense was violated when the trial

court refused to permit the defendant to put on evidence concerning the

State's witness' motive for fleeing the country. The state court resolution

of this ground was an unreasonable application of or contrary to United

States Supreme Court precedent.

Ground Seven:

Eldar Z. Veliev was denied due process and a fair trial when his codefendant’s post arrest silence was used as substantive evidence against

him at trial. The state court adjudication of this claim was an

unreasonable application of or contrary to United States Supreme Court

precedent.

Ground Eight:

Eldar Z. Veliev’s right to present a defense was violated when the trial 

refused to permit defendant to put on evidence concerning the State’s

witness’ motive for fleeing the country. The state court adjudication of

this claim was an unreasonable application of or contrary to United States

Supreme Court precedent.

Ground Nine:

Eldar Z. Veliev was denied effective assistance of appellate counsel when

his counsel failed to present the following issues on direct appeal:

1: Defense Counsel rendered ineffective assistance when they

failed to object to the admission of evidence concerning victim Tigran

Safaryan's character during the prosecution's case-in-chief where the

defendant had not yet put on his case or otherwise put on any evidence

concerning the victim's character in violation of defendant's rights under

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the Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution and corresponding provisions of the Ohio Constitution. (TR.

Vol. 1, pp. 37-41).

2. The trial court erred when it allowed victim Safaryan to

testify over objection why he was "cautious" of defendant Ambartsoumov

in violation of defendant's rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and corresponding

provisions of the Ohio Constitution. (TR. Vol. 1, p. 71).

3. The trial court erred when it permitted Safaryan's cousin,

Sabina Shvets, to testify over objection as to the reasons why Safaryan was

cautious of Ambartsoumov in violation of defendants' rights under the

Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution and corresponding provisions of the Ohio Constitution (TR.

Vol. 3, pp. 77-95).

4. The trial court erred to the prejudice of the defendants when

it used the wrong standard in deciding the discoverability of materials

sought by the defense under Crim.R. 16(B)(1)(f) in violation of defendant's

rights under the Fifth, Sixth, and Fourteenth Amendments to the United

States Constitution and corresponding provisions of the Ohio

Constitution. (TR. Vol. 1, pp. 100-101).

5. Defense Counsel rendered ineffective assistance when they

failed to object to the admission of evidence of the victim Arut Khoulian's

character during the prosecution's case in chief where the defedant had

not yet put on his case or otherwise any evidence concerning the victim's

character in violation of defendant's rights under the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution and

corresponding provisions of the Ohio Constitution. (TR. Vol. 1, pp.

119-122).

6. Defense counsel rendered ineffective assistance when they

failed to cross-examine Tigran Safaryan about inconsistent statements he

made to medical personnel concerning how the confrontation started that

resulted in his wound in violation of defendant's rights under the Fifth,

Sixth, and Fourteenth Amendments to the United States Constitution. 

(TR. Vol. 1, pp. 105-113).

7. The trial court erred when it overruled the defense motion

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for a continuance to subpoena Tigran Safaryan in order to question him

about statement he made to emergency room personnel in violation of

defendant's rights under the Fifth, Sixth, and Fourteenth Amendments to

the United States Constitution and corresponding provisions of the Ohio

Constitution. (TR. Vol. 4, p. 29).

8. The trial court erred in refusing to allow the defense to play

a video tape recording of Ambartsoumov's statement to the police in

violation of defendant's rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and corresponding

provisions of the Ohio Constitution. (TR. Vol. 4, p. 56).

9. Trial counsel rendered ineffective assistance when they

failed to introduce during cross-examination of Detective Siniff portions of

his interview with Ambartsoumov in violation of defendant's rights under

the Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution and corresponding provisions of the Ohio Constitution. (TR.

Vol. 2, pp. 160-180).

10. Trial counsel rendered ineffective assistance when they

failed to introduce, pursuant to Evid.R. 801(D)(1)(b), Ambartsoumov's

statement to the Detective Siniff indicating how he was cut the night of the

incident in order to rebut the prosecution's charge against Ambartsoumov

that he never explained t the police how he got cut during the incident in

violation of defendant's rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and corresponding

provisions of the Ohio Constitution. (TR. Vol. 4, p. 56).

The state court adjudication of this claim was an unreasonable application

of or contrary to United States Supreme Court precedent.

Ground Ten:

Eldar Z. Veliev was denied effective assistance of counsel when his

counsel failed to investigate and present testimonial evidence that Alex

Nercessian cut Arut Khoulian's neck and Armen Stepanyan cut Tigran

Safaryan's arm.

Respondent moved to dismiss the petition because Petitioner had failed to

exhaust state court remedies with respect to ground ten. (Doc. 10). On June 3, 2013,

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Petitioner amended his petition, omitting ground ten. (Doc. 14).

II. FACTS

The facts of the underlying offense are stated in the state court of appeals'

opinion. This is how the state court of appeals described the events which led to the

filing of charges against Petitioner:

 On the evening of May 17, 2008, Safaryan and Koulian joined another

friend, Alex Nercessian, at the “Hawa Russia,” a Russian club/restaurant

located on East Dublin Granville Road, Columbus. Appellant, an

employee of a body shop owned by Ambartsoumov, was at the restaurant

that evening with Ambartsoumov.

 Safaryan testified on behalf of the state and gave the following account.

After arriving at the restaurant that evening, Safaryan received a phone

call, and he went outside to a patio area to continue the conversation. As

Safaryan finished his call, Ambartsoumov, appellant, and two other

individuals came outside. Safaryan and Ambartsoumov were acquainted

with each other. Ambartsoumov started walking toward Safaryan, and

Safaryan noticed what appeared to be a knife in Ambartsoumov's hand.

Safaryan said to Ambartsoumov: “[W]hat do you say to my cousin.” (Tr.

Vol.I, 50 .) Ambartsoumov then slashed at Safaryan with a knife. Safaryan

attempted to block the attack, but he received a ten-inch knife wound to

his right arm. Just before the attack, Safaryan heard Ambartsoumov say

“kill” in Russian. (Tr. Vol.I, 80.) After being cut, Safaryan punched

Ambartsoumov and attempted to get away from the patio area.

When Ambartsoumov first came outside the restaurant, appellant was

walking directly behind him. Safaryan's friend, Koulian, was also outside

at the time, standing in the vicinity of appellant. Safaryan observed a

silver knife in appellant's hand, and then he saw “blood all over”

Koulian's shirt. (Tr. Vol.I, 55.)

Police officers were dispatched to the restaurant, and when

Ambartsoumov refused to get on his knees, the officers subdued him with

a Taser gun. At the time, Ambartsoumov was speaking in Russian,

threatening to kill Safaryan and his family. At trial, Safaryan identified

Ambartsoumov as his assailant.

Koulian gave the following account of the events that evening. Shortly

after arriving at the restaurant with Safaryan, Koulian went outside to

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smoke. Koulian heard a commotion and he observed Ambartsoumov

holding a knife in his hand, threatening Safaryan. Ambartsoumov then

struck Safaryan on the right arm with the knife. Safaryan punched

Ambartsoumov and retreated. Koulian observed Ambartsoumov get to

his feet with the knife in his hand.

Koulian attempted to back away from the scene, but another individual,

later identified as appellant, was “coming towards” him. (Tr. Vol.I, 129.)

Koulian raised his arms and said, “hey, stop.” (Tr. Vol.I, 129.) Koulian

observed “something that resembled a medical scalpel” in appellant's

hand. (Tr. Vol.I, 129.) Koulian took a step backward and appellant shoved

Koulian in the shoulder area; appellant then pulled his hand back, and

Koulian immediately “saw blood coming down like crazy from my neck.”

(Tr. Vol.I, 130.) Someone pulled Koulian away, and Nercessian came

outside to assist him. Koulian later learned that his assailant was named

“Eldar.” At trial, Koulian identified appellant as the individual who

assaulted him. Koulian suffered an eight-inch wound to his neck, and he

experiences numbness in the area of the wound; doctors informed him

that some nerve endings had been damaged.

 Following the incident, Koulian testified before a grand jury proceeding,

and he subsequently received a threatening phone call in which the caller

stated: “You will die tonight.” (Tr. Vol.I, 177.) Koulian immediately closed

his jewelry business and left the Columbus area. He subsequently

obtained an airline flight to Russia after receiving paperwork from the

Russian consulate in California.

Alexander Dashovsky, who was attending a birthday party at the Hawa

Russia restaurant on the night of the incident, gave the following

testimony. During the evening, Safaryan got up from his table and went

outside to smoke. Shortly thereafter, Ambartsoumov got up from his table

and went to the restroom. Dashovsky then went outside to smoke; as he

was walking toward the door, Dashovsky observed Ambartsoumov pass a

knife to appellant. Dashovsky, who was acquainted with Ambartsoumov,

recognized the knife from when Ambartsoumov “used to cut hair.” (Tr.

Vol.II, 86.) Dashovsky walked outside and observed Safaryan walking

away, “holding his arm.” (Tr. Vol.II, 87.) Safaryan was bleeding; his arm

was “severely cut down to the veins.” (Tr. Vol.II, 87.)

Dashovsky then heard Koulian yelling “I got cut, I got cut.” (Tr. Vol.II, 87.)

Koulian's neck had been cut, and Dashovsky ran inside the restaurant to

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get some towels and blankets. Dashovsky turned his attention to

Safaryan's wounds because he “didn't think Arut [Koulian] would make

it.” (Tr. Vol.II, 88.) Ambartsoumov and appellant went back inside the

restaurant. Dashovsky testified he did not observe either appellant or

Ambartsoumov being hit or punched during the incident. At trial, the

state played a recording of a 911 call placed by Dashovsky that evening in

which he told the dispatcher that one of the assailants was of “Armenian

descent, first name Garri.” (Tr. Vol.II, 96.)

Dmitry Semikin testified he was standing outside the restaurant that

evening when he heard screams and observed between 10 to 15

individuals near the restaurant entrance. Semikin observed a knife in

Ambartsoumov's hand, and Safaryan's “arm was already cut and he was

holding it with another hand.” (Tr. Vol.III, 19.) Semikin saw Safaryan

punch Ambartsoumov. He also observed Koulian “holding his neck,

which was bleeding.” (Tr. Vol.III, 21.) Appellant was standing across from

Koulian at the time. As Ambartsoumov was taken into custody by police,

he was making “[h]is usual threats, that he will kill everybody and he will

avenge everybody.” (Tr. Vol.III, 25.)

 Columbus Police Officer Matthew Ewing accompanied Ambartsoumov in

a medical vehicle to the hospital; the officer observed that he was bleeding

from a cut to his right hand, near the thumb. Columbus Police Detective

Glenn Siniff spoke with Safaryan later that night at the hospital. The next

day, Detective Siniff interviewed Koulian, who named the individual that

cut his throat. After being shown a photo array, Koulian picked out

appellant's picture from the array. The detective also spoke with Semikin,

who identified appellant as being involved in the incident.

 Sabina Shvets, a cousin of Safaryan, testified that she was at a nightclub in

2007 and had a conversation with Ambartsoumov. After Shvets told

Ambartsoumov that she was related to Safaryan, “he got mad and he

started saying that he hates him, that he's going to kill his son, his family.”

(Tr. Vol.III, 82.) Ambartsoumov once told Shvets: “I'm the king of the city,

and if I don't like someone, I'm going to kill the person.” (Tr. Vol.III, 84.)

 Aydin Gasanov, Ambartsoumov's father-in-law, was called as a witness

by the defense. Gasanov was at the Hawa Russia on May 17, 2008, and he

gave the following account of the events. During the evening,

Ambartsoumov and appellant got up from their table; a short time later,

Safaryan, Koulian, Nercessian, and several other individuals went outside

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to smoke. Later, Gasanov heard screaming, and he went outside and

observed appellant lying on the floor, while Ambartsoumov was on his

knees attempting to get up. Gasanov testified that nine or ten individuals

“were beating Garri and Eldar with their feet.” (Tr. Vol.IV, 35–36.)

Gasanov attempted to stop the fight, and appellant and Ambartsoumov

eventually went back inside the restaurant.

Ambartsoumov testified on his own behalf. Ambartsoumov, who

graduated from National Beauty Academy after moving to the United

States from Azerbaijan, currently owns a body shop. He has known

Safaryan for 15 years, and he has known appellant for 12 years. On May

17, 2008, Ambartsoumov was having dinner at the Hawa Russia

restaurant with some friends and relatives. During the evening,

Ambartsoumov went to the restroom, and then went outside with

appellant to smoke.

Ambartsoumov testified that Safaryan, Koulian, and Nercessian “started

coming closer.” (Tr. Vol.IV, 68.) As the men approached, Safaryan told

Ambartsoumov that he wanted to talk to him. Ambartsoumov told

Safaryan that he was with his family and that he did not “want any

problems.” (Tr. Vol.IV, 69.) Ambartsoumov testified that Safaryan then

“smacked me twice. And I walked back and tried to go.” (Tr. Vol.IV, 69.)

After being hit twice, Ambartsoumov “hit him back.” (Tr. Vol.IV, 69.)

Safaryan then hit Ambartsoumov a third time, causing him to fall down.

When Ambartsoumov fell, he “tried to push this guy. I get * * * cut very

badly.” (Tr. Vol.IV, 70.) Ambartsoumov's father-inlaw came outside, and

Ambartsoumov then went back inside the restaurant. When police officers

arrived, Ambartsoumov refused an officer's order to get on his knees. He

told the officer to “cuff me” instead. (Tr. Vol.IV, 72.) The officer then used

a Taser gun on him. Ambartsoumov denied having a knife that evening,

and he denied observing a knife in appellant's hand.

Dimitri Zubrich was at the Hawa Russia restaurant that evening, and he

testified that “everybody knows that Tigran [Safaryan] doesn't like Garri

[Ambartsoumov] and has been trying to get him for something.” (Tr.

Vol.IV, 151.) During the evening, Ambartsoumov and appellant went

outside to smoke, and individuals seated at Safaryan's table then got up

and also went outside. Zubrich observed Safaryan hit Ambartsoumov;

Zubrich did not want to get involved, so he went back inside the

restaurant. A short time later, Ambartsoumov, appellant, and

Ambartsoumov's father-in-law came back inside the restaurant and

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Zubrich heard screams. Five or six individuals came running inside the

front door of the restaurant and headed toward the back kitchen door.

State v. Veliev, supra, at **1-4.

III. PROCEDURAL DEFAULT

Grounds Four and Five 

Petitioner’s fourth and fifth grounds for relief contend that the trial court

improperly limited his cross-examination and implied in the presence of the jury that he

should testify. These grounds were raised as one on direct appeal. Although in his

habeas petition Petitioner characterizes his fourth ground broadly as a denial of his

“right to test the reliability of witnesses through cross-examination on all relevant

matters,” on direct appeal the focus of this claim was more limited. On direct appeal,

Petitioner raised this issue as a Sixth Amendment Confrontation Clause claim. 

Specifically, he framed the issue as directed to the trial court’s limiting of his crossexamination of his co-defendant by declining to allow a demonstration of the altercation. 

As explained in his appellate brief, “[t]his demonstration concerned the heart of

Appellant’s defense - he did not cut anyone and was attacked.” Motion to Dismiss Exhibit

13, p. 21. With respect to his fifth ground for relief here, Petitioner presented this issue

on direct appeal as relating to the trial court’s “improper[] suggest[ion] that Appellant

should take the stand in the presence of the jury.” Id., p. 19.

The Court’s review of the record concludes that these claims are based on the

following exchange during the trial:

[Counsel for Veliev]: Judge, if I may ask this witness to come out and

demonstrate what happened out on the patio that night from his point of

view.

THE COURT: Well, Mr. Shamansky is his lawyer. He didn’t do it, so I’m

not going to allow it at this point. You can do it with your own client if

you want to. But you don’t represent this client. I’m not going to have

any demonstrations at this point. Thank you. 

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Tr.Vol. IV, pp. 81-82.

Respondent contends that these grounds are procedurally defaulted because of

Petitioner’s failure to raise a contemporaneous objection. Alternatively, Respondent

argues that these claims fail on their merits. 

A. Legal Standard

Congress has provided that state prisoners who are in custody in violation of the

Constitution or laws or treaties of the United States may apply to the federal courts for a

writ of habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the

state courts to protect the constitutional rights of criminal defendants, and in order to

prevent needless friction between the state and federal courts, a state criminal

defendant with federal constitutional claims is required to present those claims to the

state courts for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an

avenue open to him by which he may present his claims, then his petition is subject to

dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 

(1982) (per curiam) citing Picard v. Connor, 404 U.S. 270, 275–78 (1971). But if, because of

a procedural default, the Petitioner can no longer present his claims to the state courts,

then he has also waived those claims for purposes of federal habeas corpus review,

unless he can demonstrate both cause for the procedural default, as well as actual

prejudice from the alleged constitutional error. Murray v. Carrier, 477 U.S. 478, 485

(1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

In the Sixth Circuit, a four-part analysis must be undertaken when the state

argues that a federal habeas claim is waived by the Petitioner's failure to observe a state

procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “First, the court must

determine that there is a state procedural rule that is applicable to the Petitioner's claim

and that the Petitioner failed to comply with the rule.” Id. Second, the Court must

determine whether the state courts actually enforced the state procedural sanction. Id.

Third, it must be decided whether the state procedural forfeiture is an adequate and

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independent state ground upon which the state can rely to foreclose review of a federal

constitutional claim. Id. Finally, if the Court has determined that a state procedural rule

was not complied with, and that the rule was an adequate and independent state

ground, then the Petitioner must demonstrate that there was cause for him not to follow

the procedural rule, and that he was actually prejudiced by the alleged constitutional

error. Id. This “cause and prejudice” analysis applies to failures to raise or preserve

issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).

B. Analysis

Turning to the first prong—whether Petitioner failed to comply with an

applicable state procedural rule—respondent argues that Petitioner failed to comply

with Ohio's “contemporaneous objection rule.” A review of the transcript confirms

that Petitioner made no contemporaneous objection in connection with the exchange

cited above. In Ohio, there appears to be a non-codified contemporaneous objection

rule that applies to any error that could have been avoided or corrected by the trial

court if a contemporaneous objection were made. LeFort v. Century 21–Maitland Realty

Co., 32 Ohio St.3d 121, 123 (Ohio 1987) (“An appellate court will not consider any error

which a party complaining of a trial court's judgment could have called but did not call

to the trial court's attention at a time when such error could have been avoided or

corrected by the trial court.”) (citations omitted). The Court of Appeals has recognized

this broad contemporaneous objection rule. See, e.g., Hinkle v. Randle, 271 F.3d 239, 244

(6th Cir. 2001).

In Hinkle v. Randle, the Court of Appeals held that a claim for prosecutorial

misconduct claim involving the prosecutor's statements in closing argument was

procedurally defaulted. Id. at 244. The Court of Appeals noted, “[w]e have held that

Ohio's contemporaneous objection rule constitutes an adequate and independent state

ground that bars federal habeas review absent a showing of cause and prejudice.” Id. 

Similarly, in Williams v. Bagley, 380 F.3d 932, 968 (6th Cir. 2004), the Court of Appeals

applied the contemporaneous objection rule to Petitioner's failure to object to

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prosecutor's impermissibly vouching for the credibility of Petitioner's accomplices

during their testimony. Here, there was no objection which could have alerted the court

to any suggestion that its comments deprived Petitioner of his right not to be a witness

against himself or indicated to the jury that the court expected Petitioner to testify. Had

such an objection been made, it could have resulted in a curative instruction. 

Accordingly, Ohio's contemporaneous objection rule applied, and the first prong of the

procedural default analysis is satisfied.

Second, the Court must determine whether the state courts actually enforced the

state procedural sanction. “In determining whether state courts have relied on a

procedural rule to bar review of a claim, we look to the last reasoned opinion of the

state courts and presume that later courts enforced the bar instead of rejecting the

defaulted claim on its merits.” Hinkle, 271 F.3d at 244. Here, the state appellate court,

which issued the last reasoned opinion reviewing Petitioner’s claim that his Fifth

Amendment rights were violated, applied a plain error analysis:

Appellant argues that the obvious implication from the trial court's

comments is that the court believed appellant needed to take the stand.

Appellant contends that the comments deprived him of his Fifth

Amendment right not to be a witness against himself, and left the jury

with the impression that the court expected him to testify.

In addressing a similar challenge to the above comments by co-defendant

Ambartsoumov, this court interpreted the trial court's response “as

exercising its discretion in whether to permit demonstrative evidence,”

and that, “when read in context, merely stress[es] that the attorney should

have his own client perform demonstrations.” Ambartsoumov at ¶ 59. We

rejected the contention that the trial court indicated “a disbelief in

[co-defendant's] testimony or somehow cast doubt on his credibility.” Id.

This court also noted that no objection was made to the comments, nor did

defense counsel request a limiting instruction, and we found no plain

error by the trial court.

Again, we view the trial court's comments as directed toward the issue of

its control over the presentation of evidence, i.e., demonstrative evidence,

but we do not construe those comments as implying that appellant was

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required to testify. Further, the trial court instructed the jury that

appellant's “choosing not to testify is not evidence, and you may draw no

negative conclusion against Mr. Veliev simply because he exercised his

constitutional right.” (Tr. Vol.V, 97.) There is a presumption that a jury

follows the instructions provided by the trial court. State v. Sibert (1994), 98

Ohio App.3d 412, 425, 648 N.E.2d 861, citing Pang v. Minch (1990), 53 Ohio

St.3d 186, 559 N.E.2d 1313, paragraph four of the syllabus.

Finding no plain error, we overrule appellant's fourth assignment of error.

State v. Veliev, 2010 WL 5449848, **7-8 (December 23, 2010) . Respondent argues that by

applying plain error review pursuant to Criminal Rule 52(b), the state appellate court

was enforcing the contemporaneous objection rule. Hinkle supports this argument,

noting that the Court of Appeals “view[s] a state appellate court's review for plain error

as the enforcement of a procedural default.” 271 F.3d at 244 (citations omitted); see also

Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000) (“Controlling precedent in our circuit

indicates that plain error review does not constitute a waiver of state procedural default

rules”) (citations omitted).

The fact that the state appellate court here also noted that it “view[ed] the trial

court’s comments as directed toward the issue of its control over the presentation of

evidence, i.e., demonstrative evidence, but [did] not construe those comments as

implying that appellant was required to testify,” Veliev, 2010 WL 5449848, *8, did not

remove the procedural default. See Conley v. Warden Chillicothe Corr. Inst., 505 F. App'x

501, 506 (6th Cir.2012) (“The Ohio court's alternative ruling on the merits did not remove

the procedural default because ‘a state court need not fear reaching the merits of a

federal claim in an alternative holding,’” citing Harris v. Reed, 489 U.S. 255, 264 n. 10.

(1989) and Coe v. Bell, 161 F.3d 320, 330 (6th Cir. 1998)). The Court of Appeals in Conley

noted that in that case “[t]he Ohio Court of Appeals found no plain error on the record

and held that ‘[a]dditionally, appellant has not persuaded us that the comments actually

constitute prosecutorial misconduct,’ ” and still held that the Ohio appellate court did

not waive the procedural default. Conley, 505 F. App'x at 506. (citation omitted).

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Accordingly, the state appellate court's application of plain error review satisfies the

second prong of the procedural default analysis.

Third, it must be decided whether the state procedural forfeiture is an adequate

and independent state ground upon which the state can rely to foreclose review of a

federal constitutional claim. As explained above, the Court of Appeals in Hinkle noted

that it had “held that Ohio's contemporaneous objection rule constitutes an adequate and

independent state ground that bars federal habeas review absent a showing of cause and

prejudice.” Hinkle, 271 F.3d at 244. The Williams decision also confirmed that Ohio's

contemporaneous objection rule was an adequate and independent state ground.

Williams, 380 F.3d at 968–69.

Finally, if the Court has determined that a state procedural rule was not complied

with, and that the rule was an adequate and independent state ground, then the

Petitioner must demonstrate that there was cause for him not to follow the procedural

rule, and that he was actually prejudiced by the alleged constitutional error. This “cause

and prejudice” analysis applies to failures to raise or preserve issues for review at the

appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985). Petitioner has not filed a

traverse, and the facts he lists in his petition in support of Grounds Four and Five do not

describe any cause for the default or prejudice from the alleged error. Generally

speaking, “ignorance of the law and procedural requirements ... is insufficient to

establish cause to excuse [a] procedural default.” Bonilla v. Hurley, 370 F.3d 494, 498 (6th

Cir. 2004). Furthermore, Petitioner has not preserved any argument that counsel was

ineffective for failing to object to the introduction of the testimony at issue. Murray v.

Carrier, 477 U.S. 478, 488–89 (1986) ( “Ineffective assistance of counsel, then, is cause for a

procedural default. However, we think that the exhaustion doctrine ... generally requires

that a claim of ineffective assistance be presented to the state courts as an independent

claim before it may be used to establish cause for a procedural default”). Thus, the Court

cannot find cause and prejudice sufficient to excuse the procedural default of Grounds

Four and Five, and it will be recommended that these grounds be dismissed due to their

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having been procedurally defaulted in the state courts.

Assuming, however, that either of these claims has been preserved for federal

habeas reveiw, Petitioner is not entitled to relief on the merits. Turning first to his fourth

ground, the limit on cross-examination relating to the demonstrative evidence, to the

extent that Petitioner believes this claim arises under the Confrontation Clause of the

Sixth Amendment, he has not demonstrated any violation of that clause. First, the

Confrontation Clause does not encompass a defendant’s right to confront non-adverse

witnesses. See Tan Van Le v. Prelesnik, 2006 WL 2620693, *12 (W.D. Mich. Sept. 12, 2006),

citing United States v. Doddington, 822 F.2d 818, 821 (8th Cir. 1987). Petitioner has not

demonstrated that his co-defendant was an adverse witness and the record indicates that

he was not. Further, while the Confrontation Clause guarantees the right to crossexamine state witnesses, the guarantee is for “‘an opportunity for an effective cross

examination, not cross examination that is effective in whatever way, and to whatever

extent the defense might wish.’” Miskel v.Karnes, 397 F.3d 446, 452 (6th Cir. 2005), quoting

Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam). Rather, “‘a trial court has

discretion to limit the scope of cross-examination .... This includes the discretion to

impose limits based on concerns about harassment, prejudice, confusion of the issues ...

or interrogation that is repetitive or only marginally relevant.’” Id., quoting Boggs v.

Collins, 226 F.3d 728, 736 (6th Cir. 2000), cert. denied, 532 U.S. 913 (2001). 

 In this case, the trial court exercised control over the presentation of

demonstrative evidence by Petitioner’s co-defendant. In exercising this control, the trial

court did not prevent defense counsel from inquiring about the incident in the absence

of a demonstration. Defense counsel, however, chose not to do so. Such a strategic

choice does not violate the Confrontation Clause. Bailey v. Pitcher, 86 Fed. Appx. 110, 114

(6th Cir. 2004). Rather, “[w]hen a state court gives the defendant an opportunity to crossexamine a witness and the defendant opts not to accept that opportunity as a matter of

trial strategy, it does not offend the Confrontation Clause.” Id. Because the trial court

gave Petitioner an opportunity to cross-examine his co-defendant about the altercation,

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the Court concludes that the state appellate’s rejection of Petitioner’s claim relating to the

limitation on demonstrative evidence was not contrary to, or an unreasonable

application of, clearly established Supreme Court precedent.

With respect to Petitioner’s fifth claim, there is no question that a trial court’s

direct reference to a criminal defendant’s failure to testify in his own defense is a

violation of the Fifth Amendment privilege against compelled self-incrimation. Griffin v.

California, 380 U.S. 609 (1965). Similarly, indirect references to the failure to testify also

can violate the Fifth Amendment. Byrd v. Collins, 209 F.3d 486, 533 (6th Cir. 2000). 

Where a trial court has indirectly commented on a defendant’s failure to testify, the

Court must conduct a “probing analysis” of the context of the comments. Spalla v. Foltz,

788 F.2d 400, 403 (6th Cir. 1986). This analysis is necessary in order to determine

“‘[w]hether the language used was manifestly intended to be or was of such a character

that the jury would naturally and necessarily take it to be a comment on the failure of the

accused to testify.’” Id., at 404, quoting Butler v. Rose, 686 F.2d 1163, 1170 (6th Cir. 1982). 

The analysis requires consideration of several factors including, whether the remarks

were isolated and extensive, whether the evidence of guilt was overwhelming, and

whether curative instructions were given and when. Id., citing Hearn v. Mintzes, 708 F.2d

1072, 1077 (6th Cir. 1983). 

As the state appellate court concluded, “the comments, when read in context,

merely stress that the attorney should have his own client preform demonstrations.” 

This Court agrees. The trial court’s statements, taken in context, merely indicate the trial

court’s intention to preclude a demonstration of the altercation by Petitioner’s codefendant. There is no indication from the record that trial court’s statements were

intended to be taken by the jury as a comment on Petitioner’s decision not to testify. 

Further, as the appellate court noted, the trial court instructed the jury specifically that

Petitioner was not required to testify. Under this circumstance, the appellate court’s

rejection of this claim did not involve an unreasonable interpretation of Supreme Court

precedent or an unreasonable assessment of the facts. 

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IV. MERITS REVIEW

A. Legal Standard

The provisions of the Antiterrorism and Effective Death Penalty Act, Pub.L.

104-132, 110 Stat. 1214 (AEDPA) govern the scope of this Court's review. See Penry v.

Johnson, 532 U.S. 782, 791 (2001); Wilson v. Parker, 515 F.3d 682, 691 (6th Cir. 2008). 

AEDPA imposes a "highly deferential standard for evaluating state-court rulings," Lindh

v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and "demands that state-court decisions be given

the benefit of the doubt," Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). Renico

v. Lett, 130 S.Ct. 1855, 1862 (2010)(footnote omitted) .

When the claims presented in a habeas corpus petition have been presented to

and decided by the state courts, a federal habeas court may not grant relief unless the

state court's decision was contrary to or an unreasonable application of clearly

established federal law, or based on an unreasonable determination of the facts in light

of the evidence that was presented. 28 U.S.C. §2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to

the judgment of a State court shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding

In applying this statute, the Supreme Court has held that "[t]he focus . . . is on

whether the state court's application of clearly established federal law is objectively

unreasonable . . . an unreasonable application is different from an incorrect one." Bell v.

Cone, 535 U.S. 685, 694 (2002). To obtain habeas corpus relief, a Petitioner must show the

state court's decision was "so lacking in justification that there was an error well

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understood and comprehended in existing law beyond any possibility for fairminded

disagreement." Bobby v. Dixon, 132 S.Ct. 26, 27 (2011), quoting Harrington v. Richter, 562

U.S. ––––, ––––, 131 S.Ct. 770, 786–87 (2011). This bar is "difficult to meet" because

"habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice

systems,' not a substitute for ordinary error correction through appeal." Harrington v.

Richter, 131 S.Ct. at 786 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979)

(Stevens, J., concurring in judgment)). In short, "[a] state court's determination that a

claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could

disagree' on the correctness of the state court's decision." Id., quoting Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004).

In situations such as this where the state courts have not adjudicated the merits

of a claim, a federal habeas court should review a Petitioner's claim de novo. Howard v.

Bouchard, 405 F.3d 459, 467 (6th Cir. 2005) ("Where the state court has not addressed or

resolved claims based on federal law, most courts, including this one, have held that the

decision is not an ‘adjudication on the merits.' Thus, a federal habeas court reviews such

unaddressed claims de novo."); McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir.2003)

(reviewing habeas Petitioner's sufficiency-of-the-evidence claim de novo where the state

courts had considered the admissibility of the evidence but not the sufficiency of the

evidence); Pennington v. Jones, 2006 WL 322474, at *2 (E.D.Mich. Feb. 10, 2006)

(unpublished) (reviewing habeas Petitioner's claim de novo where he raised it for the

first time in his petition).

Questions of state law are not reviewable in a federal habeas action. See Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991) ("We have stated many times that federal habeas

corpus relief does not lie for errors of state law. Today, we reemphasize that it is not the

province of a federal habeas court to reexamine state-court determinations on state-law

questions.") (citations and internal quotation marks omitted). Petitioner instead must

show that "he is in custody in violation of the Constitution or laws or treaties of the

United States." 28 U.S.C. § 2254(a); see also Estelle, 502 U.S. at 68 ("In conducting habeas

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review, a federal court is limited to deciding whether a conviction violated the

Constitution, laws, or treaties of the United States."). Accordingly, the Sixth Circuit has

held that "[e]rrors by a state court in the admission of evidence are not cognizable in

habeas corpus proceedings unless they so perniciously affect the prosecution of a

criminal case as to deny the defendant the fundamental right to a fair trial." Kelly v.

Withrow, 25 F.3d 363, 370 (6th Cir.1994).

B. GROUNDS ONE, TWO, SIX AND EIGHT

 Petitioner presents three grounds for relief attacking various trial court

evidentiary rulings and claims that these rulings violated his right to present a complete

defense. All of these claims relate to the trial court’s exclusion of extrinsic or

impeachment evidence which Petitioner contends was necessary to refute the testimony

of two of the state’s primary witnesses, Mr.Koulian, Petitioner’s alleged victim, and

Mr.Safaryan, the alleged victim of Petitioner’s co-defendant . For example, in his first

ground Petitioner claims that the trial court erred by refusing to allow testimony from

former law enforcement officials regarding a task force criminal investigation . 

According to Petitioner, this testimony would have rebutted assertions by Mr. Safaryan

that Mr. Safaryan was an upstanding community leader who did not engage in illicit

activity. Defense counsel made a proffer of this proposed testimony on the record. Tr.

Vol IV pp. 186-190. Further, in his second ground, Petitioner contends that the trial

court erred in excluding the admission of an investigative report from a task force

initiated in 1999 or 2000 which Petitioner asserts would have demonstrated Mr.

Safaryan’s involvement in illicit business activities. Significant discussion surrounding

this report was had on the record following the direct examination of Mr. Safaryan. Tr.

Vol I, pp. 82-105. Additionally, in his sixth and eighth grounds (which appear to be the

exact same ground), Petitioner claims that the trial court erred in refusing to permit him

to put on extrinsic evidence regarding Mr. Koulian’s motive for fleeing the country. 

Petitioner contends that the extrinsic evidence would have demonstrated that Mr.

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Koulian fled the country because he was having financial problems, not because he had

been threatened by Petitioner’s family. Specifically, Petitioner sought to introduce

testimony from the attorney and property manager from Gahanna Creekside

Investments, the company that leased Mr. Koulian space for his jewelry store. Tr. Vol I,

pp. 225-229. 

Certainly, to the extent these claims address issues of state evidentiary law, they

are not subject to collateral review. “Habeas review does not encompass state court

rulings on the admission of evidence unless there is a constitutional violation.”

Clemmons v. Sowders, 34 F.3d 352, 357 (6th Cir. 1994). Consequently, the Court’s review

is limited to whether Petitioner can demonstrate a violation of his federal constitutional

rights. Haliym v. Mitchell, 492 F.3d 680, 700 (6th Cir. 2007). Here, Petitioner has sought

to elevate his claims to a constitutional level by contending that the trial court’s

evidentiary rulings outlined above violated his right to present a complete defense. 

The Constitution guarantees criminal defendants a meaningful opportunity to

present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986). This right

ensures a defendant’s opportunity to present witnesses in his defense. See Taylor v.

Illinois, 484 U.S. 400, 409 (1988). However, “[t]he accused does not have an unfettered

right to offer testimony that is incompetent, privileged, or otherwise inadmissible under

standard rules of evidence.” Taylor, 484 U.S. at 410; Rockwell v. Yukins, 341 F.3d 507 (6th

Cir.2003). The Supreme Court has made it clear that the right to present a “complete”

defense is not an unlimited right to ride roughshod over reasonable evidentiary

restrictions. Rockwell, at 512.

Criminal defendants “must comply with established rules of procedure and

evidence designed to assure fairness and reliability in the ascertainment of guilt and

innocence.” United States v. Cruse, 59 Fed. Appx. 72, 79 (6th Cir. 2003), quoting Chambers

v. Mississippi, 410 U.S. 284, 302(1973). The application of “[s]uch rules do[es] not abridge

an accused's right to present a defense so long as they are not arbitrary or

disproportionate to the purposes they are designed to serve.” Cruse, 59 Fed. Appx. at

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79–80. Whether a decision to exclude certain evidence or preclude questioning about a

particular matter violates a criminal defendant's constitutional right to present a defense

turns on the extent to which that evidence is so highly relevant that it becomes

indispensable to the success of the defense. Crane, 476 U.S. at 69. Against such

considerations courts must balance the state's interests in enforcing the evidentiary rule

on which the exclusion was based. The question for the Court to consider is whether

Petitioner was afforded ‘a meaningful opportunity to present a complete defense.’ “

Crane, 476 U.S. at 690, quoting California v. Trombetta, 467 U.S. 479, 485 (1984). 

As the United States Supreme Court has recognized, “[o]nly rarely have we held

that the right to present a complete defense was violated by the exclusion of defense

evidence under a state rule of evidence.” Nevada v. Jackson, 133 S.Ct. 1990, 1992 (2013). 

Cases in which the Supreme Court has declared the exclusion of evidence

unconstitutional found that the exclusion “significantly undermined fundamental

elements of the defendant's defense.” United States v. Scheffer, 523 U.S. 303, 317 (1998).

The Tenth District Court of Appeals did not address any of these claims as a

violation of Petitioner's right to present a complete defense. Rather, the appellate court

analyzed Petitioner's claims as appealing the trial court's evidentiary rulings. This is so

even though, with respect to Claims One and Two, Petitioner cited federal law and

argued the issue in terms of various constitutional rights. With respect to claims Six

and Eight, Petitioner’s assignment of error before the state appellate court was phrased

in terms of the Sixth and Fourteenth Amendments but his argument did not directly

address these principles. In analyzing Petitioner’s first ground, the appellate court

relied on Ohio Rule of Evidence 403 and found that the trial court was within its

discretion to exclude the testimony from various law enforcement officers as to Mr.

Safaryan’s alleged criminal activity to avoid conducting a “trial within a trial” as well as

to avoid confusion and delay. Similarly, with respect to Petitioner’s second ground, the

appellate court found that the trial court had not abused its discretion under Rule 403 in

excluding a nearly ten-year-old investigatory report. Finally, the appellate court found

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the trial court properly exercised its discretion in excluding testimony on behalf of

Gahanna Creekside Investments regarding Mr. Koulian under Rule 403 on grounds of

confusion. 

Because the state court did not review the merits of Petitioner's constitutional

claims, AEDPA deference does not apply and this Court is required to conduct a de

novo review of questions of law and clear error review of factual determinations. 

Couturier v. Vasbinder, 385 Fed.Appx. 509, 516 (6th Cir. 2010); see also Ambrose v Booker,

684 F.3d 638 (6th Cir. 2012). 

 With respect to his first and second claims, Petitioner contended on appeal that

both the testimony of former law enforcement officers and a criminal investigation

report were necessary to rebut the testimony of Mr. Safaryan that he never engaged in

criminal activity. As Petitioner portrays it, at trial the prosecution “touted” Mr.

Safaryan’s business accomplishments, including his receipt of a governor’s award. 

In reviewing the record, the Court concludes that the prosecution did not devote

much time to Mr. Safaryan’s business accomplishments in direct examination. Rather,

the prosecution asked a handful of questions about his accomplishments as background

information and only elicited testimony about a governor’s award in response to

defense counsel’s questioning on cross-examination. See Tr. Vol I, pp. 38, 115. Further,

on cross-examination, defense counsel was able to raise the specter of his involvement

in illicit activities by questioning Mr. Safaryan as to whether he had any involvement in

auto theft or flipping or falsifying VIN tags. See Tr. Vol. I, p. 111. 

With respect to Petitioner’s sixth and eighth grounds regarding the exclusion of

extrinsic evidence of Mr. Koulian’s motives for fleeing the country, Petitioner sought to

call the attorney and property manager for Gahanna Creekside Investments, the

management company leasing the space for Mr. Koulian’s jewelry store. On appeal,

Petitioner contended that this testimony would have revealed that Mr. Koulian’s

business was in financial distress and would have refuted Mr. Koulian’s testimony that

he had no contact with anyone in Columbus. While this testimony was not allowed,

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Mr. Koulian was cross-examined as to whether he portrayed his business entity as a

limited liability corporation rather than a sole proprietorship, whether he was behind in

rental payments prior to leaving the country, and whether his father removed any

inventory from the store after Mr. Koulian left Columbus. Tr. Vol. I, pp. 198, 203, 204-

207.

Taking all above into account, the trial court’s rulings did not violate Petitioner’s

constitutional rights or deny him a fair trial. Petitioner had a meaningful opportunity to

present a defense and the Court is not persuaded that any of this extrinsic evidence

would have added to or refuted the testimony already in the record in any significant

way. Rather, as the trial court found, all of this evidence had the potential to create

confusion and delay by shifting the jury’s attention to collateral issues unrelated to the

events of the incident on May 17, 2008. 

Moreover, the exclusions of this extrinsic evidence were harmless under the strict

standard applicable in federal habeas cases. See Fleming v. Metrish, 556 F.3d 520, 536-37

(6th Cir. 2009) (right to present a defense is subject to a harmless error analysis). On

federal habeas review, the harmless-error standard is whether the violation “had

substantial and injurious effect or influence in determining the jury's verdict.” Brecht v.

Abrahamson, 507 U.S. 619 (1993). Habeas courts must apply this standard regardless of

the harmless-error standard applied by the state court or whether the state court

undertook harmless error review at all. Fry v. Pliler, 551 U.S. 112, 121-22 (2007). As

explained above, defense counsel was afforded the opportunity to cross-examine Mr.

Safaryan and Mr. Koulian in such as way as to raise issues regarding their credibility

and the prosecution made only limited references to Mr. Safaryan’s accomplishments. 

As a result, the exclusion of this evidence cannot be found to have had substantial and

injurious effect or influence on the jury’s verdict. Consequently, Petitioner is not

entitled to habeas relief on these grounds. 

C. GROUND THREE

Petitioner's third claim relates to the investigative report which formed the basis

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of his second claim. As Petitioner raises this claim here, his opportunity to proved that

the prosecution violated its duties under Brady v. Maryland, 373 U.S. 83 (1963), was

violated when the trial court quashed the subpoena for the non-confidential report of

the criminal investigation which would have rebutted the State’s characterizations of

Mr. Safaryan’s good character. This claim was raised on direct appeal as follows:

The trial court improperly quashed Appellant’s subpoena of a non-confidential criminal

investigation that rebutted the State’s characterizations of an alleged victim’s good

character, thereby violating the Due Process clause of the Fourteenth Amendment and

comparable provisions of the Ohio Constitution.

Petitioner’s argument in his state appellate brief is set forth in its entirety as

follows:

The Due Process Clause of the Fourteenth Amendment to the

United States Constitution and comparable provisions of the Ohio

Constitution require the prosecuting attorney to disclose all evidence that

is “favorable” to the accused and “material” to issues of guilt or

punishment. Brady v. Maryland (1963), 373 U.S. 83, 87; United States v.

Agurs (1976), 427 U.S. 97; State v. Johnson (1988), 39 Ohio St.3d 48. Crim R.

16(A)(1)(f) sets forth similar mandates.

As to the first requirement under Brady, the term “favorable” is

defined broadly. Many forms of evidence qualify as exculpatory or

“favorable.” The Supreme Court has recognized that Brady encompasses

evidence and information that may be used to impeach prosecution

witnesses. Giglio v. United States (1972), 405 U.S. 150, 154-55 (holding that

promises for favorable treatment and plea agreements must be disclosed); 

see also United States v. Bagley (1985), 473 U.S. 667, 682 (holding that

impeachment evidence as well as exculpatory evidence is subject to

disclosure and no distinction should be made with respect to the

constitutional disclosure mandates). Favorable evidence also includes

information that may not be favorable as it stands alone, but constitutes

the “tip of the iceberg” and would lead to additional favorable evidence:

“The duty of disclosure under Brady extend[s] not only to the

[prosecution’s] knowledge of concrete exculpatory information, but also

to facts from which other exculpatory information could be inferred,

i.e.,facts which could constitute the ‘tip of the iceberg’ of other Brady

evidence.” United States v. Burnside (N.D. Ill. 1993), 824 F.Supp. 1215, 1258

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(quoting United States v. Shaffer (9th Cir. 1986), 789 F.2d 682, 690-91)). 

With respect to the second requirement under Brady, evidence is

“material” is there is a “reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been

different.” United States v. Bagley (1985), 473 U.S. 667, 682. A “reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 682. Materiality is not affected by the fact that evidence

is arguably cumulative: “the fact that other impeachment evidence was

available to defense counsel does not render additional impeachment

evidence immaterial.” United States v. Smith (1996), 77 F.3d 511, 515

(rejecting prosecuting attorney’s argument that additional impeachment

evidence was immaterial and cumulative due to existence of other

impeachment evidence).

Defense counsel suspected the existence of Brady material for

months. The documents sought by the subpoena were information sought

by defense counsel for months. The State continuously told counsel and

the court these documents did not exist. (Tr. Trn. Vo., I, Pg. 89-90). 

Through independent investigation and a subpoena, the defense found

this exculpatory information but was denied access to it. Even if this

information were not itself admissible in court, it was the “tip of the

iceberg” information recognized in Burnside. These documents may have

led to impeachment material. Therefore, the evidence should have been

disclosed under Brady. 

Petitioner seems to have rephrased his claim slightly for purposes of his habeas

petition, tweaking it to suggest not that a Brady violation occurred, but that the trial

court foreclosed his opportunity to demonstrate that such a violation occurred. Despite

Petitioner’s characterization here that he was prevented from proving a Brady violation,

both the trial court and the state appellate court evaluated the investigative report

under the Brady standard and independently concluded, based on a review of the

material contained in the report, that no such violation occurred. 

As set forth in great detail by the state appellate court in State v. Ambartsoumov,

2010 WL 5385439 (Franklin Co. App. December 21, 2010), adopted by reference in

Petitioner’s case, the trial court addressed the issue of the disclosure of the report as

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follows:

By way of background, on August 24, 2009, shortly prior to the start of

trial, the trial court addressed a motion to compel discovery and/or

exculpatory evidence filed by counsel for appellant. Counsel argued that

several of the state's witnesses "are heavily steeped in criminal activity,

including Nercessian who was in prison.". (Tr. Vol. I, 8). Counsel for

co-defendant Veliev joined in the motion. In response, the prosecution

argued there was no "[Brady] information" regarding Safaryan, Nercessian

or Koulian (Tr. Vol. I, 10). Also on that date, counsel for appellant filed a

subpoena with the Organized Crime Investigations Commission Task

Force (via the office of the Ohio Attorney General)

The next morning, August 25, 2009, the trial court addressed the filing of

the subpoena, at which time counsel for co-defendant Veliev joined in

appellant's subpoena motion. The court informed the parties: "The state's

lawyers have advised me that the office of the attorney general wants to

move to quash the subpoena on the argument that it is confidential,

investigative material, and that the prosecuting attorney of Franklin

County does not have access to this material.". (Tr. Vol.1, 14.)

Following the start of trial, the trial court, outside the presence of the

jurors, again addressed the issue of the subpoenaed documents. The

prosecutor noted on the record “After speaking with some people, it

seems as though the documents that have been requested are not

confidential, as this was a closed case." "(Tr. Vol. I, 86). The trial court

questioned Jerry Maloon, an assistant attorney general, who had

conducted a search for the requested documents. Maloon had located

several old administrative files, but stated that the task force "has been

over for at least five years."and that "[t]he vast majority -- I'm going to say

99.99 percent of any and all documentation having to do with this task

force of Organized Crime has been destroyed per our record retention

policies." (Tr. Vol. I, 87-88) Maloon noted that, pursuant to a document

dated October 12, 1999, a task force had been initiated in 2000.

Maloon searched for the names in the subpoena (Safaryan, Koulian, and

Nercessian) and stated that "Nercessian is the subject of a Dispatch article,

January 17th, 2003, talking about a drug ring, and it looks like he got 30

months' incarceration at the federal level for that." (Tr. Vol. I, 88-89.) 

Maloon also found "the proposal from the CPD detective *** that was

dated October 12th, 1999." (Tr. Vol. I, 89) Maloon requested that the trial

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court conduct an in camera review of the documents, stating: "There is a

great deal of sensitive information in the proposal." (Tr. Vol. I, 89) Maloon

further represented: In my review of that material *** [t]here's not one

shred of evidence in there as to Ty*** Safyran's criminal conduct. It's just

not there. I know what they're looking for." (TR. Vol. I, 100.)

The trial court conducted an in camera review of the documents. 

Following its review, the court noted that the documents included a

photocopy of an article from the Columbus Dispatch, dated January 17,

2003, entitled 'Drug Ring Operated at Club,'that appears to reflect a

conviction in the federal district court, and Mr Nercessian is reflected in

this article as, quote, who is in jail and is expected to plead guilty to his

role in the ring next month, unquote" (Tr. Vol. I, 90-91.) The trial court

indicated it would allow defense counsel to have a copy of that article. 

The trial court noted that the “other document that I've been provided ***

is entitled summary investigation in to Russian émigré criminal activity in

the Columbus area prepared October 12, 1999, and then there's what I

understand from counsel to be a Columbus Police officer listed as the

author." (Tr. Vol. I, 91) The court related that the document contained

various unnumbered pages, of which the following subheadings are

included: Auto thefts, insurance frauds, body shop frauds, odometer

frauds, title frauds, other frauds, tax fraud. Exceptions, drug trafficking,

prostitution, organized crime connections." (Tr. Vol , 91) The court

indicated that the document also included a "two-page list entitled

Índividuals Involved'with some phone numbers and purported

information about their employment. There look to be 20 or so

individuals listed" (Tr. Vol. 1, 92) Further, the document included "four

pages of *** businesses involved." (Tr. Vol. I. 92). The last pages of the

document included a USA Today newspaper article dated August 24,

1999, as well as a 1998 U.S. News and World Report cover story. "Dirty

Diamonds. How the FBI and some honest Moscow cops broke up a ring

that was looting tons of gold and gems from the Russian National

Treasury" (Tr. Vol. I, 92)

The trial court concluded: I do not believe that under [Brady] that any of

this material is subject to being turned over" (Tr. Vol. I, 93.) The trial court

made clear it was providing some of the information, and that “the only

thing I'm not giving you is the summary of investigation by police officers

10 years ago." (Tr. Vol. I, 95) Defense counsel argued, however, that the

investigative report should be turned over to refute Safaryan's suggestion

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that he was a legitimate businessman. The trial court noted that the issue

of admissibility was "really a 403 issue for "me," and "that it's terribly

prejudicial and confuses the issues and does not have any focus on what

we're here to talk about." (Tr. Vol. I, 96) The court reiterated its view that

the documents did not contain "[Brady] material." (Tr. Vol. I, 99).

When addressing the issue of a Brady violation as raised by Petitioner on appeal,

the state appellate court stated as follows:

 Appellant further argues that the trial court's ruling may have prevented

the defense from obtaining Brady material. Appellant contends that the

court's ruling resulted in prejudice because (1) the documents may have

been useful as a tool to refute Safaryan's characterizations as a legitimate

businessman, and (2) the documents may have been the "tip of the

iceberg"for other relevant and exculpatory evidence.

In general, R.C. `149.43 establishes "a statutory right of access to public

records and the procedure for exercising that right." State v. Lawson, 11th

Dist. No. 2001-L-071, 2002-Ohio-5605, 30. Pursuant to that statute, a

"public record does not include confidential law enforcement

investigatory records.'" Id. quoting R.C. 149.43 (A)(1)(h). 

The state argues that the materials at issue were not withheld by the

prosecution, and that the trial court never specifically reached a

determination whether of not the records were confidential; rather, the

trial court conducted an independent review of the records and

determined that some of the information in the records was not

admissible, and that the records contained no Brady material. The record

supports the state's contention that the trial court did not make a

determination as to confidentiality of the documents under R.C. 149.43

but, instead, the court reviewed the materials in camera and concluded

they did not contain Brady material and were not relevant to the issues

before the jury.

There are three components to a Brady violation. "[T]he evidence at issue

must be favorable to the accused, either because it is exculpatory, or

because it is impeaching, that evidence must have been suppressed by the

State, either willfully or inadvertently, and prejudice must have ensued. 

Strickler v. Greene (1999), 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948.

The sealed investigative task force report which the trial court reviewed is

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part of the record before this court, and we have reviewed that record to

determine whether there is any support for appellant's assertion that a

Brady error may have occurred as a result of the failure to provide that

information. Having conducted our own independent review of the

report, we are satisfied that there is nothing contained in that report which

would have altered the jury verdicts, nor do we find error with the trial

court's determination that the report did not contain material required to

be disclosed under Brady. State v. Lawson (June 4, 1990 ), 12 Dist. No.

CA88-05-044 (appellate court’s own review of sealed materials found no

violation of Brady rule and no materials that could have affected outcome

of trial. 

To the extent that Petitioner raises a Brady claim, as the state courts explained,

there are three essential components of a Brady violation: (1) evidence at issue must be

favorable to the accused because it is exculpatory or impeaching; (2) evidence must

have been willfully or inadvertently suppressed by the State; and (3) prejudice ensued.

See Strickler v. Greene, 527 U.S. 263, 282–83 (1999). The duty to disclose information

under the Brady rule encompasses both exculpatory and impeachment evidence. See id.,

527 U.S. at 280; U.S. v. Bagley, 473 U.S. 667, 676 (1985); Kyles v. Whitley, 514 U.S. 419, 433

(1995); United States v. Mullins, 22 F.3d 1365, 1372 (6th Cir.1994). Impeachment evidence

is that which is favorable to the accused and “if disclosed and used effectively, [ ] may

make the difference between conviction and acquittal.” Bagley, 473 U.S. at 67. See also

United States v. Presser, 844 F.2d 1275, 1278 (6th Cir.1988). “Such evidence is material ‘if

there is a reasonable probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.’” Strickler, 527 U.S. at 280

quoting Bagley, 473 U.S. 682. 

The information at issue here was not exculpatory in the sense that it

demonstrated Petitioner’s innocence. Rather, defense counsel sought the report to

impeach the credibility of Mr. Safaryan. While this information was sealed and made

part of the state court record, this sealed information is not part of the record before this

Court. Although the Court has requested that the record be supplemented to include

this sealed information, Respondent has been unable to locate it. However, the state

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court record does contain a fairly thorough explanation of the information contained in

the investigative report. 

Significantly, Petitioner has not demonstrated the materiality of the information

contained in the report. That is, Petitioner has not shown a reasonable probability that

the result of the trial would have been different had the trial court provided Petitioner

access to the complete report. As set forth above, the state appellate court noted that the

age of the report and the failure of the report to result in any charges against Mr.

Safaryan supported its exclusion under state evidentiary rules. Further, the testimony

of the custodian of the report indicated that Mr. Safaryan was not a subject of the

investigation report. Additionally, as explained above in connection with Petitioner’s

other claims, Petitioner’s counsel was able to cross-examine Mr. Sarafyan regarding his

alleged involvement in illicit activities. 

Moreover, Petitioner’s suggestion that his access to the report could have led to

the discovery of Brady material is nothing more than speculation. “Allegations that are

purely speculative cannot support a Brady claim.” Stockman v. Berghuis, 2013 WL

6885121, *11 (E.D. Mich. Dec. 31, 2013) citing Burns v. Lafler, 328 F.Supp.2d 711, 724 (E.D.

Mich. 2004); see also United States v. Driscoll, 970 F.2d 1472, 1482 (6th Cir. 1992) abrogated

on other grounds by Hampton v. United States, 191 F.3d 695 (6th Cir. 1999). Further, “a

federal court’s conclusions that such inadmissible material would ‘lead’ to admissible,

exculpatory evidence cannot be based on ‘speculation with slight support.’” Wogenstahl

v. Mitchell, 668 F.3d 307, 325, n. 3 (6th Cir. 2012) quoting Wood v. Bartholomew, 516 U.S. 1,

8 (1995). For all of these reasons, Petitioner cannot succeed on any Brady claim because

he has not demonstrated the materiality of the information in the report or how he was

prejudiced by its alleged suppression. 

To the extent that Petitioner, through his framing of his Brady claim here, is

trying to suggest a violation of his right to present a full defense, any such claim also

fails. As explained above in connection with his other claims, Petitioner had a

meaningful opportunity to present a defense and the Court is not persuaded that any

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evidence regarding a ten-year old investigation not even directed to Mr. Safaryan

would have refuted his testimony in any significant way. Moreover, under a harmless

error analysis, the exclusion of this evidence cannot be found to have had a substantial

and injurious effect or influence on the jury’s verdict. Rather, as previously discussed,

defense counsel was afforded the opportunity to cross-examine Mr. Safaryan in such a

way as to raise issues regarding his credibility. Consequently, Petitioner’s third claim

fails on its merits.

D. GROUND SEVEN

Petitioner's seventh claim is that his due process rights and his right to a fair trial

were violated when his co-defendant’s post arrest silence was used as substantive

evidence against him at trial. Specifically, Petitioner argues that the state's questioning

of Officers Ewing and Graber elicited responses commenting on Petitioner's codefendant’s right to remain silent. 

Officer Ewing testified, in relevant part, as follows:

Q. ... So, officer, whenever – do you ride – you ride with the

defendant to the hospital. Does the defendant start speaking

to you at any point:

A. Oh, yes.

Q. And what sort of – if you recall, what sort of things is the

defendant saying?

A. Again, he was very, very angry at people at the club, outside

the club. Again, he very much talked. He was very much,

you know, didn't – I, of course, didn't ask him any questions,

basically because we're kind of taught not to do that.

...

Q. Thank you. Did he ever – did he ever explain how he hurt

his hand?

A. No, I asked him a number of times even. You know, that's

the first thing the medics asked. That's the first thing that

the nurses and doctors asked when they came in to the ER

there at St. Ann's. He could never explain how he cut –

On cross-examination, Officer Ewing testified:

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Q. So when [the prosecutor] was asking about did he tell you

how he cut his thumb, she was asking you basically about

what he didn't say or did say, correct? In the ambulance,

remember she asked about that, that whole line of questions

about his thumb and did he say how it was cut?

A. Oh, right.

Q. So you weren't even asking him any questions about that?

A. Oh, I asked him some questions. I just mean that I did not –

we're just told not to begin to interrogate people. I mean I'm

allowed to say if someone is bleeding on the scene and, you

know, hey, how did that happen.

Q. Right.

A. You know, but things like that. But ...

Q. Were you asking him specifically how he cut his thumb?

A. Yes, I asked him how – yes, I asked him a couple times, well,

how did that happen, you know. Because even again, the

doctors, the nurses, the medics they all asked the same

questions numerous times.

Q. And he said I don't know?

A. He could not give us an answer. I don't know if he said "I

don't know."

Q. What did he say?

A. He just didn't answer. He just did not answer the question

and went to a different subject and began, you know, talking

in different directions, sir, is the best way I can explain.

Officer Graber testified:

Q. Did he tell you anything about how he got that injury?

A. No, he didn't talk about the specific injury itself. He did

make remarks about the altercation. 

Q. And what were those remarks?

A. He stated that he was inside the club and was approached

by two individuals. And he felt disrespected. And that they

started verbally attacking him.

Q. Let me back up. This conversation that you were having,

this was at the hospital?

A. Yes.

Q. And this is while you're waiting for doctors and nurses to

treat the defendant?

A. Right.

Q. Were you asking him any questions about the incident at

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that time?

A. No, we didn't ask him any specific questions. He just started

talking while we were waiting.

Q. And how does your job differ from that of a detective?

A. Well, if we were doing an official interrogation, we would

have read his Miranda Rights and proceeded in a more

formal interview.

Following this testimony, Petitioner's counsel moved for a mistrial. Counsel

argued that the prosecutor's questioning regarding the injury to Petitioner's codefendant’s hand permitted the jury to hear that Petitioner’s co-defendant offered no

explanation. Counsel contended that this bit of testimony raised the issue of

"post-arrest silence." 

The trial court denied the motion for a mistrial, concluding that Petitioner’s codefendant was not being subjected to interrogation such that any violation of Doyle or

Miranda could have occurred. On appeal, the Tenth District agreed that Petitioner’s codefendant had not been subject to a custodial interrogation regarding the circumstances

of how he had been injured. 

Doyle, relied upon by the state courts, establishes that a prosecutor may not

comment on a defendant's post-arrest silence as substantive evidence of guilt for the

crime. Doyle v. Ohio, 426 U.S. 610, 619 (1976). "[T]he use ... of [a defendant's] silence , at

the time of arrest and after receiving Miranda warnings, violate[s] the Due Process

Clause of the Fourteenth Amendment." Id. at 619. Doyle, however, applies only in the

context of post-Miranda silence. U.S. v. Peyton, 183 Fed.Appx. 539, 548 (6th Cir. 2006)

citing Fletcher v. Weir, 455 U.S. 603, 607 (1982). Where the record is silent with respect to

whether a defendant received Miranda warnings, comments on a defendants' post-arrest

silence do not violate due process. United States v. Christian, 404 Fed.Appx. 989, 992-93

(6th Cir. 2010). Here, the testimony suggests that, although he was in custody, 

Petitioner’s co-defendant had not been given his Miranda warnings because neither

officer believed they were engaged in a custodial interrogation. Putting aside the issue

of whether the officers’ questioning satisfies the requirements of an interrogation (and

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again, the lower courts concluded it did not), what is clear is that, assuming for this

Court’s purposes that it did, the situation in which Petitioner’s co-defendant found

himself was post-arrest, pre-Miranda. Consequently, this Court does not view the

circumstances of this case as fitting squarely within the bounds of Doyle.

However, assuming as Petitioner contends, that his co-defendant’s silence was

used as substantive evidence against him, Petitioner is not entitled to habeas relief on

this claim. In this case, the state appellate court’s decision to uphold Petitioner’s

conviction despite the use of his co-defendant’s post-arrest, pre-Miranda silence as

substantive evidence of guilt was not contrary to or an unreasonable application of

clearly established federal law. At the time of Petitioner’s trial, the constitutionality of

using a criminal defendant’s post-arrest, pre-Miranda silence as substantive evidence

had not been addressed by the United States Supreme Court and disagreement existed

among the federal circuits. Hall v. Vasbinder, 563 F.3d 222, 232 (6th Cir. 2009); Pearson v.

Romanowski, 2013 WL 6801162, at *7 (E.D. Mich. December 23, 2013). Consequently, the

state appellate court’s decision to uphold Petitioner’s conviction despite the alleged use

of his co-defendant’s post-arrest, pre-Miranda silence was not contrary to or an

unreasonable application of clearly established federal law and Petitioner is not entitled

to habeas relief.

Finally, even assuming that the testimony elicited from Officers Graber and

Ewing relating to his co-defendant’s silence impacted Petitioner's due process rights

and right to a fair trial, he still is not entitled to relief. For purposes of determining

whether federal habeas relief must be granted to a state prisoner on the ground of

federal constitutional error, the appropriate harmless error standard to apply is whether

the error had a substantial and injurious effect or influence in determining the jury's

verdict. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

The Court finds that the isolated testimony, not referenced by the prosecutor in closing

argument nor revisited during any other portion of the trial, did not have a substantial

and injurious influence in determining the jury's verdict. Consequently, Petitioner is not

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entitled to habeas relief on his seventh claim. 

E. GROUND NINE

Petitioner's ninth ground for relief is that he was denied the effective assistance

of appellate counsel when his counsel failed to raise a number of issues on direct

appeal. "The benchmark for judging any claim of ineffectiveness must be whether

counsel's conduct so undermined the proper functioning of the adversarial process that

the trial cannot be relied on as having produced a just result." Strickland v. Washington,

466 U.S. 668, 686,(1984). The court in Strickland announced the now familiar two-prong

test to determine if there was ineffective assistance of counsel, which would result in

reversible error:

First, the defendant must show that counsel's performance was

deficient. This requires showing that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This requires showing that

counsel's errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable

Strickland, 466 U.S. at 687.

"Judicial scrutiny of counsel's performance must be highly deferential."

Strickland, 466 U.S. at 689. "[A] court must indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional assistance [ ... ]." Id. "The

defendant must show that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome." Id. at 694.

The United States Supreme Court has recently cautioned federal habeas courts to

"guard against the danger of equating unreasonableness under Strickland with

unreasonableness under § 2254(d)." Harrington, ––– U.S. ––––, ––––, 131 S.Ct. 770, 788,

178 L.Ed.2d 624 (2010). The Court observed that while " ‘[s]urmounting Strickland's high

bar is never an easy task [,]' ... [e]stablishing that a state court's application of Strickland

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was unreasonable under § 2254(d) is all the more difficult." Id. (quoting Padilla v.

Kentucky, ––– U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010)). The Court

instructed that the standards created under Strickland and § 2254(d) are both " ‘highly

deferential,' and when the two apply in tandem, review is ‘doubly' so." Id. (citations

omitted). Thus, when a federal habeas court reviews a state court's determination

regarding an ineffective assistance of counsel claim, "[t]he question is not whether

counsel's actions were reasonable. The question is whether there is any reasonable

argument that counsel satisfied Strickland's deferential standard." Id. 

Claims of ineffective assistance of appellate counsel are governed by the

Strickland analysis. Haliym v. Mitchell, 492 F.3d 680, 694 (6th Cir.2007). "In order to

succeed on a claim of ineffective assistance of appellate counsel, a Petitioner must show

errors so serious that counsel was scarcely functioning as counsel at all and that those

errors undermine the reliability of the defendant's convictions." McMeans v. Brigano, 228

F.3d 674 (6th Cir. 2000), citing Strickland, 466 U.S. 668; and Rust v. Zent, 17 F.3d 155,

161-62 (6th Cir. 1994). Counsels' failure to raise an issue on appeal could only be

ineffective assistance if there is a reasonable probability that inclusion of the issue

would have changed the result of the appeal. McFarland v. Yukins, 356 F.3d 688 (6th Cir.

2004), citing Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir .2001), cert. denied, 535 U.S. 940

(2002). "Counsel's performance is strongly presumed to be effective." McFarland, 356

F.3d at 710, quoting Scott v. Mitchell, 209 F.3d 854, 880 (6th Cir.2000), citing Strickland.

Petitioner identifies ten different issues which he claims counsel failed to raise on

appeal in violation of Strickland. With respect to claims 1, 5, 6, 9, and 10, respondent

argues that Petitioner was represented by the same attorney at trial and on direct appeal

and that, under Ohio law, this counsel was not required, on appeal, to raise the issues

regarding his own ineffective assistance at trial. Respondent argues that this precludes

Petitioner from satisfying the first prong of the Strickland test because Petitioner cannot

demonstrate that his appellate counsel's performance was deficient as it relates to these

five claims. The Court agrees that Petitioner cannot satisfy the Strickland test but the

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Court views respondent’s argument as more appropriately directed to the issue of

prejudice. 

As a general matter, a defendant who is convicted in Ohio of a criminal offense

has two avenues for attacking that conviction - direct appeal and collateral attack.

Claims appearing on the face of the record must be raised on direct appeal, or they will

be waived under Ohio's doctrine of res judicata. See State v. Perry, 10 Ohio St.2d 175 

(1967). Issues which must be raised in a postconviction action pursuant to R.C. § 2953.21

include claims which do not appear on the face of the record and claims of ineffective

assistance of trial counsel where the defendant was represented on direct appeal by the

same attorney who represented him at trial. State v. Cole, 2 Ohio St.3d 112, 114 (1982). 

See Van Hook v. Anderson, 127 F.Supp.2d 899, 915 (S.D. Ohio 2001); Jenkins v. Sheets, 2009

WL 3151232, at*3 (S.D. Ohio 2009). 

 In light of this, Petitioner cannot claim that he was prejudiced by his appellate

counsel’s failure to raise issues on direct appeal relating to that same attorney’s alleged

shortcomings as trial counsel. Rather, under the circumstances of this case, the avenue

of collateral attack through a postconviction petition was available to Petitioner to

address the issues of his trial counsel’s alleged deficiencies. Under this scenario,

Petitioner cannot establish that a “reasonable probability” exists that the outcome of his

direct appeal would have been different. Consequently, Petitioner will not be granted

relief on grounds 1, 5, 6, 9 and 10 of his ineffective assistance of appellate counsel claim.

The second and third grounds for Petitioner’s ineffective assistance of appellate

counsel claim relate to the issue of testimony permitted over objection. The second

ground asserts that appellate counsel should have raised the issue of trial court error in

allowing the victim to testify over objection regarding why he was “cautious” of

Petitioner’s co-defendant. The third ground is that appellate counsel should have

raised the issue of trial court error in allowing the victim’s cousin to testify as to why

the victim was “cautious” of the Petitioner’s co-defendant. 

In reviewing his postconviction petition, the Tenth District Court of Appeals

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concluded that both sets of testimony were properly admissible under Ohio Evid. R.

404(B) because the testimony provided background information about the nature of the

relationship between the victim and Petitioner’s co-defendant and was proof of motive. 

Consequently, applying the Strickland standard, the state court concluded that

Petitioner failed to demonstrate that his appellate counsel rendered ineffective

assistance for failing to raise these issues on direct appeal. 

The appellate court’s decision was neither an unreasonable application of federal

law nor based on an unreasonable determination of the facts. The state court

determined that Petitioner’s evidentiary claims were without merit. This Court is

bound by the state court’s interpretation of state law. See Brooks v. Anderson, 292 Fed.

App’x. 431, 437-38 (6th Cir. 2008) (“this Court has held that federal habeas courts must

defer to a state court's interpretation of its own rules of evidence and procedure when

assessing a habeas petition. It stands to reason that this is true even when the Petitioner

is not seeking habeas relief on the state court evidentiary determination at issue.”)

(citations and internal quotation marks omitted). See also Adams v. Smith, 280 F.Supp.2d

704, 721 (E.D.Mich. 2003) (deferring to the state court's evidentiary determination that

contested testimony was not hearsay in rejecting a claim of ineffective assistance of

counsel for failure to object to the alleged hearsay). Accordingly, because Petitioner's

evidentiary claims are without merit, the Ohio Court of Appeals reasonably determined

that appellate counsel was not ineffective for failing to raise the claims on appeal. Davie

v. Mitchell, 547 F.3d 297, 312 (6th Cir. 2008); Willis v. Smith, 351 F.3d 741, 745 (6th Cir.

2003). Petitioner is therefore not entitled to habeas relief based on the ineffective

assistance of appellate counsel relating to these claims.

Petitioner’s fourth basis for his ineffective assistance of appellate counsel claim is

that appellate counsel should have raised the issue of the trial court’s error in using the

wrong standard in deciding the discoverability of materials sought by the defense

under Crim. R. 16. As this claim was raised in his postconviction petition, Petitioner

argues that the trial court improperly applied the Brady standard to determine whether

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the subpoenaed report was discoverable when the trial court should have considered

only whether the information sought was favorable and material either to guilt or

punishment. See Motion to Dismiss, Exhibit 22. 

In addressing this issue in Petitioner’s postconviction petition, the state appellate

court held that similar arguments were raised and rejected on direct appeal. Further,

the appellate court noted that it had, on direct appeal, reviewed the sealed record and

determined that there was no evidence of a Brady violation nor any information which

would have altered the jury’s verdict. Consequently, the appellate court concluded that

Petitioner could not demonstrate prejudice under Strickland. 

In reviewing the record, the Court notes that not only did the trial court

evaluated the under Brady, but it also concluded that the report was “not material to the

issues in this case,” was not “germane” and would not “be a basis for legitimate cross

examination of any witness in this case.” Tr. Vol. I pp. 93-99. The appellate court

agreed. Because the appellate court acknowledged the breadth of the trial court’s

decision and upheld it on direct appeal, no reasonable probability exists that the result

of the appeal would have been different. Consequently, Petitioner has not established

that the appellate court’s decision involved an unreasonable application of Strickland.

Petitioner’s seventh basis for his ineffective assistance of appellate counsel claim

is that appellate counsel should have raised the issue of the trial court’s error in

overruling the defense motion for a continuance in order to subpoena Mr. Safaryan to

question him about statements made to emergency room personnel. Respondent

argues that the trial court reasonably determined a continuance was not necessary

because defense counsel had the relevant medical report and could have crossexamined Mr. Safaryan as to it during the State’s case in chief. 

In addressing Petitioner’s postconviction petition, the state appellate court held

that this issue hinged upon the validity of admissibility of various statements the victim

had made which the trial court had barred. The state appellate court determined that

the trial court had not erred in barring the statements and, therefore, there was no

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probability of success had this issue been raised on appeal. The appellate court also

noted that the trial court had the discretion to bar the admission of these statements as

hearsay and that there was no evidence of inconsistency in the statements. A “denial of

a continuance rises to the level of a constitutional violation only when there is an

unreasoning and arbitrary insistence upon expeditiousness in the face of [a] justifiable

request for delay.” Burton v. Renico, 391 F.3d 764, 772 (6th Cir. 2004). Here, Petitioner

has not demonstrated that the trial court’s denial of a continuance was unreasonable

given its evidentiary rulings that the statements were prejudicial. Again, Petitioner has

failed to demonstrate that the state appellate court’ s determination that Petitioner had

not demonstrated prejudice is not contrary to or an unreasonable application of federal

law. 

Petitioner’s eighth basis for his ineffective assistance of appellate counsel claim is

that the trial court erred in refusing to allow the defense to play a video tape recording

of his co-defendant’s statement to the police. As explained in the state appellate court’s

opinion addressing this issue as raised in Petitioner’s postconviction petition, Petitioner

sought to introduce the interview to rebut that state’s evidence that Petitioner’s codefendant did not explain to the police how his co-defendant received the cut to his

hand. Here, respondent argues, among other things, that Petitioner is not entitled to

habeas relief because defense counsel was able to refute any suggestion that Petitioner’s

co-defendant was not forthcoming about the cut to his hand when questioning his codefendant on direct examination. 

A review of the transcript reveals the following testimony by Petitioner’s codefendant on direct examination:

Q. And did you talk to [Detective Siniff] freely and answer all his questions?

A. Yes, yes.

Q. Not a single question did you not answer, right? 

 A. I answered every question he asked me.

Q. He asked you how you cut your finger, didn’t he?

A. Yes.

Q. And you told him, didn’t you?

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A. Yes.

...

Q. Did he ask you how you hurt your finger?

A. Yes, sir, he did.

Q. And you had nothing to hide, correct?

A. No, I didn’t.

Q. And did you explain to him the whole incident in detail?

A. Yes, sir, I did.

Tr. Vol. IV, pp. 77-78. 

The state appellate court, in addressing this issue in the postconviction

proceeding, noted with approval the various evidentiary grounds on which the trial

court had excluded the interview tape. However, the court also held, relying on the

testimony quoted above, that Petitioner was unable to demonstrate that the outcome of

the trial would have been different had the tape been allowed to be played. As the

appellate court found, Petitioner’s co-defendant testified about his interview and stated

that he answered every question including the questions about how his co-defendant

had cut his hand. This Court agrees that, based on the co-defendant’s own testimony

set forth above, the outcome of the trial would not have been any different had the

interview tape been played. Consequently, the Court finds that this ground for relief

lacks merit. 

For the foregoing reasons, the Court RECOMMENDS that the petition for a writ

of habeas corpus be DISMISSED.

V. THE MOTION FOR LEAVE TO AMEND

The proposed tenth ground for relief states as follows

Eldar Z. Veliev was denied effective assistance of counsel when his

counsel failed to investigate and present testimonial evidence that Alex

Nercessian cut Arut Khoulian’s neck and Armen Stepanyan cut Tigran

Safaryan’s arm.

This ground for relief was included in the original petition. At the time of the

filing of the original complaint, Petitioner’s appeal relating to this ground was pending,

making this claim unexhausted. By order dated May 16, 2013, Petitioner was directed

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to delete this unexhausted claim or this action would be dismissed without prejudice. 

On June 3, 2013, Petitioner filed an amended petition for a writ of habeas corpus which

did not contain this claim. Petitioner has filed a supplemental state court appendix

documenting his exhaustion of this proposed claim.

In response, respondent argues that the proposed amendment is futile. 

Respondent contends that the proposed amendment is barred by the statute of

limitations, having been required to be filed by March 22, 2013. According to the

respondent, the proposed amendment neither relates back to the first amendment nor is

it subject to equitable tolling. Further, respondent asserts that the claim is procedurally

defaulted and that Petitioner has failed to make an actual innocence showing to

overcome his procedural default. 

Petitioner has filed a one-page, eight-line reply. In this reply, Petitioner states

that this claim was pending before this Court on March 22, 2013, and that it relates back

to the filing of the original petition. Petitioner does not address the issue of procedural

default. 

A. LEGAL STANDARD

Fed.R.Civ.P. 15(a)(2) states that when a party is required to seek leave of court in

order to file an amended pleading, “[t]he court should freely give leave when justice so

requires." The United States Court of Appeals for the Sixth Circuit has spoken

extensively on this standard, relying upon the decisions of the United States Supreme

Court in Foman v. Davis, 371 U.S. 178 (1962) and Zenith Radio Corp. v. Hazeltine Research,

Inc., 401 U.S. 321 (1971), decisions which give substantial meaning to the phrase "when

justice so requires." In Foman, the Court indicated that the rule is to be interpreted

liberally, and that in the absence of undue delay, bad faith, or dilatory motive on the

part of the party proposing an amendment, leave should be granted. In Zenith Radio

Corp., the Court indicated that mere delay, of itself, is not a reason to deny leave to

amend, but delay coupled with demonstrable prejudice either to the interests of the

opposing party or of the Court can justify such denial. 

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 Expanding upon these decisions, the Court of Appeals has noted that:

[i]n determining what constitutes prejudice, the court considers whether the

assertion of the new claim or defense would: require the opponent to

expend significant additional resources to conduct discovery and prepare for

trial; significantly delay the resolution of the dispute; or prevent the plaintiff

from bringing a timely action in another jurisdiction.

Phelps v. McClellan, 30 F.3d 658, 662-63 (6th Cir. 1994) (citing Tokio Marine & Fire

Insurance Co. v. Employers Insurance of Wausau, 786 F.2d 101, 103 (2d Cir. 1986)). See also

Moore v. City of Paducah, 790 F.2d 557 (6th Cir. 1986); Tefft v. Seward, 689 F.2d 637 (6th

Cir. 1982). Stated differently, deciding if any prejudice to the opposing party is

“undue” requires the Court to focus on, among other things, whether an amendment at

any stage of the litigation would make the case unduly complex and confusing, see

Duchon v. Cajon Co., 791 F.2d 43 (6th Cir. 1986) (per curiam), and to ask if the defending

party would have conducted the defense in a substantially different manner had the

amendment been tendered previously. General Electric Co. v. Sargent and Lundy, 916

F.2d 1119, 1130 (6th Cir. 1990); see also Davis v. Therm-O-Disc, Inc., 791 F. Supp. 693 (N.D.

Ohio 1992).

 The Court of Appeals has also identified a number of additional factors which the

District Court must take into account in determining whether to grant a motion for

leave to file an amended pleading. They include whether there has been a repeated

failure to cure deficiencies in the pleading, and whether the amendment itself would be

an exercise in futility. Robinson v. Michigan Consolidated Gas Co., 918 F.2d 579 (6th

Cir.1990); Head v. Jellico Housing Authority, 870 F.2d 1117 (6th Cir.1989). The Court may

also consider whether the matters contained in the amended complaint could have been

advanced previously so that the disposition of the case would not have been disrupted

by a later, untimely amendment. Id. 

B. PROCEDURAL DEFAULT

The standard for finding procedural default is the same as that set forth above in

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connection with Petitioner’s fourth and fifth claims. The procedural history of

Petitioner’s proposed claim is as follows. On April 18, 2012, Petitioner filed a motion

for leave to file a delayed motion for a new trial, alleging he had discovered new

evidence indicating that several individuals, other than himself and his co-defendant,

had committed the offenses. By entry dated September 12, 2012, the trial court denied

leave to file a delayed motion for new trial. In denying this motion, the trial court

concluded that Petitioner had failed to prove by clear and convincing evidence that he

had been unavoidably delayed from discovering, within the 120-day time limit, the

evidence upon which he was relying in support of his motion. The state appellate court

agreed by decision issued July 11, 2013. In reaching its decision, the appellate court

stated: 

{¶ 11} Crim.R. 33(B) states in part:

Motions for new trial on account of newly discovered evidence shall be

filed within one hundred twenty days after the day upon which the

verdict was rendered, or the decision of the court where trial by jury has

been waived. If it is made to appear by clear and convincing proof that the

defendant was unavoidably prevented from the discovery of the evidence

upon which he must rely, such motion shall be filed within seven days

from an order of the court finding that he was unavoidably prevented

from discovering the evidence within the one hundred twenty day period.

{¶ 12} Thus, “Crim.R. 33(B) provides a mechanism for allowing a new trial

motion based on newly discovered evidence to be reviewed by the trial

court beyond the prescribed one hundred twenty day time limit.” State v.

Shakoor, 7th Dist. No. 10 MA 64, 2010–Ohio–6386, ¶ 16. A defendant is to

file a motion for leave, and must “show by clear and convincing proof that

he has been unavoidably prevented from discovering, within the one

hundred twenty day time limit, the evidence that he is relying on to

support his motion for new trial.” Id. “[A] party is unavoidably prevented

from filing a motion for new trial if the party had no knowledge of the

existence of the ground supporting the motion for new trial and could not

have learned of the existence of that ground within the time prescribed for

filing the motion for new trial in the exercise of reasonable diligence.”

State v. Walden, 19 Ohio App.3d 141, 145–46 (10th Dist.1984). Further,

“[m]ost courts * * * also require defendants to file a motion for leave

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within a reasonable time after discovering the evidence.” State v. Peals, 6th

Dist. No. L–10–1035, 2010–Ohio–5893, ¶ 22, citing State v. Grinnell, 10th

Dist. No. 09AP–1048, 2010–Ohio–3028.

...

{14} In order to prevail on a motion for new trial based upon newly

discovered evidence, a defendant must show that the new evidence (1)

discloses a strong probability that it will change the result if a new trial is

granted, (2) has been discovered since the trial, (3) is such as could not in

the exercise of due diligence have been discovered before the trial, (4) is

material to the issues, (5) is not merely cumulative to former evidence,

and (6) does not merely impeach or contradict the former evidence. State

v. Petro, 148 Ohio St. 505 (1947). However, a trial court “may not * * *

‘consider the merits of the motion for a new trial until it makes a finding

of unavoidable delay.’ “ Peals at ¶ 21, quoting State v. Lanier, 2d Dist.

No.2009 CA 84, 2010–Ohio–2921, ¶ 17. Accordingly, “ ‘unless a trial court

has granted a defendant leave to file a delayed motion for new trial, the

motion for a new trial is not properly before the court.’ “ Peals at ¶ 21,

quoting State v. Clumm, 4th Dist. No. 08CA32, 2010–Ohio–342, ¶ 26.

{¶ 15} As noted under the facts, appellants submitted the affidavits of

three individuals who each averred that they were at the restaurant on the

night of the incident and observed individuals other than Veliev and

Ambartsoumov commit the offenses. Each of these witnesses stated they

were afraid to come forward for fear of retaliation, and one of the

witnesses stated that he told a police officer at the scene that he did not

observe anything that night.

{¶ 16} Appellants also submitted the affidavit of Palmer, trial counsel for

Veliev, in which Palmer stated he had reviewed the affidavits of Irina

Stevens, Artur Melkumov, and Irina Melkumov, and that “[a]t no time”

did these witnesses “tell me” they were outside the restaurant on May 17,

2008 during the incident, and that “[a]t no time did [they] tell me” their

version of how the stabbings took place. Palmer averred that “[t]he first

time I heard this information was when Ambartsoumov's present attorney

provided me with the affidavit in 2012.” The affidavit of Shamansky, trial

counsel for Ambartsoumov, contained almost identical statements as

those set forth in Palmer's affidavit.

{¶ 17} The affidavit of Veliev states that he had reviewed the affidavits of

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Irina Stevens, Artur Melkumov, and Irina Melkumov and that “[a]t no

time” did these witnesses “tell me” that they were outside the restaurant

on the evening of May 17, 2008, and “[a]t no time” did they relate to him

their version of the stabbings. According to Veliev, “[t]he first time I heard

this information was when my present attorney told me about it in 2011.”

Ambartsoumov submitted an almost identically worded affidavit.

{¶ 18} The trial court found that appellants had not demonstrated, by clear

and convincing evidence, that the defense was unavoidably prevented

from discovering the evidence of these three witnesses. The trial judge,

who presided over the 2009 trial of both appellants, noted that the crimes

arose from a spontaneous knife fight between patrons of the restaurant,

and that there were “[m]any people” in the vicinity of the restaurant that

evening; thus, the police officers arriving at the scene “faced a challenging

investigation, at night and in the rain, with a large number of potential

witnesses.”

{¶ 19} With respect to the affidavits submitted by the new witnesses, the

trial court noted that all three witnesses indicated in their affidavits that

they recognized both Veliev and Ambartsoumov before the stabbings;

however, “[n]one of the three witness affidavits explain when these

witnesses first came forward, or to whom,” and thus “[w]e are left to

guess how, when and why they lost their professed fear of reprisal.” The

court further noted that, while the affidavit of Ambartsoumov indicates he

learned of the “professed change of heart” of these witnesses in 2011,

“[n]one of the witnesses explain if they contacted him in 2011, or set out

any other facts about how they came forward,” nor do these witnesses

“say, one way or the other, whether they were interviewed by the original

trial lawyers (or their investigators) before trial in 2009.”

{¶ 20} In denying appellants' amended motion for leave to file a delayed

motion for new trial, the trial court held in relevant part:

Clear and convincing evidence has not been presented that the defense

was unavoidably prevented from discovering the evidence of these three

witnesses. No one disputes that these three were present at the scene of

the crimes. Apparently, no one disputes that they were known to the

defense and even listed among a number of potential witnesses on the

state's witness disclosure. Yet, the affidavits provided by defense counsel[

] do not refer to their contact, or lack of contact with these people. Trial

counsel vigorously defended this case. They are in the best position to

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supply evidence that they did not know of the witnesses if that were true.

They are in the best position to say now whether they, or an investigator

working for them, met with each of the three witnesses before trial. They

could tell us whether the witnesses told them a different story, or simply

refused affirmative requests to meet for an interview. There is no such

information provided. No suggestion comes from either attorney Palmer

or attorney Shamansky that any of the three of them hid, or placed

themselves beyond the range of a reasonable investigation by the defense,

much less beyond the Subpoena power. That being true, no clear and

convincing evidence has been presented that the defense was

“unavoidably prevented” from using the three witnesses back in 2009.

It merits mention that unlike most single-defendant cases this trial had

two co-defendants with privately retained counsel. Both mounted a

spirited, coordinated defense. In most respects their efforts appeared

closely aligned, and both defendants potentially would have profited if

the evidence tendered now had been heard. In such a situation, there is

even more reason to expect something more than has been obliquely

suggested here in the lawyers' affidavits. The court is entitled to learn

more about their joint investigation of witnesses together with their joint

trial preparation and strategy when faced with a motion like this one. The

court is asked to accept that they missed three potentially helpful

witnesses which, given the court's familiarity with the work of defense

counsel on these two cases, simply seems implausible. Both defendants

were similarly motivated to leave no good lead unexplored. As the court

recalls, both men remained out on bond through trial and might

themselves have assisted counsel. So, simply alleging years later—without

true backup evidence submitted under oath—that defense counsel utterly

failed to follow up with these alleged eye witnesses is not readily to be

accepted. The “clear and convincing” standard demands more.

(Footnote omitted.)

{¶ 21} Upon review, we agree with the trial court that appellants have not

shown, by clear and convincing evidence, that they were unavoidably

prevented from discovering, within the 120–day time limit, the evidence

they are relying upon to support their motions. With respect to the three

new witnesses, the state argued before the trial court that these witnesses

were on the state's witness list and known to the defense at the time of

trial and that most of the witnesses were interviewed by police.

{¶ 22} In State v. Wilson, 10th Dist. No. 93AP–732 (Nov. 2, 1993), this court

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affirmed the trial court's dismissal of a defendant's motion for new trial in

a case in which the defendant and several potential witnesses knew each

other prior to trial. As to one of the witnesses, this court noted that the

record contained no evidence of how this individual's potential as a

witness, “however minimal, was ultimately discovered.” As to a second

witness, this court noted that the statement of this witness was “truly

newly discovered evidence,” and could not have been discovered within

120 days of the trial, but the record failed to indicate “whether or not

anyone attempted to interview” him prior to trial. In holding that the

defense failed to present clear and convincing proof that defendant was

unavoidably prevented from discovering the evidence at issue, this court

observed that “[i]f counsel, for whatever reason, cannot effectively

communicate with the potential witnesses or cannot devote sufficient time

to investigate personally, then the services of a private investigator can be

retained.” Other Ohio courts have similarly held that a defendant was not

“unavoidably prevented from discovering the evidence” where the

witnesses were known to the defense prior to trial. See, e.g., State v. Saban,

8th Dist. No. 73647 (Mar. 18, 1999); State v. Nicholson, 8th Dist. No. 70916

(May 1, 1997).

{¶ 23} Federal case law establishes that “if a defendant is aware of the

evidence at the time of trial, then it is not newly discovered evidence

under Rule 33.” United States v. Sims, 72 Fed.Appx. 249, 252 (6th Cir.2003).

Further, “where a witness who has indicated to the defendant * * * an

unwillingness to testify truthfully at trial * * * but later supplies an

affidavit exonerating the defendant of the offense, the affidavit is merely

newly available evidence, but it is not newly discovered evidence.”

(Emphasis sic.) Id. Thus, “a post-trial affidavit exonerating the defendant

that was provided by a witness who could have been called at trial, but

was not, can never be considered newly discovered evidence under Rule

33.” Id., citing United States v. Turns, 198 F.3d 584 (6th Cir. 2000).

{¶ 24} In the present case, the affidavits of all three witnesses indicate they

knew both Ambartsoumov and Veliev at the time of the incident.

According to the affidavit of Irina Stevens, she was seated at the same

table with appellants on the night of the events at issue. The trial court

noted no apparent dispute that these individuals were “known to the

defense and even listed among a number of potential witnesses on the

state's witness disclosure.” The affidavit of one of the witnesses, Artur

Melkumov, indicates he spoke with police during the investigation on the

night of the incident. Further, it is clear from the trial testimony that Irina

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Stevens was known at the time of trial. Specifically, one of the trial

witnesses, Dimitri Zubrick, testified that his girlfriend, Irina Stevens, went

to the restaurant with him. According to Zubrick's testimony, his

girlfriend Stevens “was never outside.” (Tr. 153.) Zubrick also noted at

trial that he spoke with a defense investigator prior to trial.

{¶ 25} Ohio courts have held that affidavits filed outside of the 120–day

time limit of Crim.R. 33 that fail to offer a sufficient explanation as to why

evidence could not have been obtained sooner are inadequate to show that

the movant was unavoidably prevented from obtaining the evidence

within the prescribed time. Shakoor at ¶ 21. See also State v. Golden, 10th

Dist. No. 09AP–1004, 2010–Ohio–4438, ¶ 19 (where appellant failed to

explain the investigative actions taken or why he was unavoidably

prevented from discovering potential witnesses, trial court did not abuse

its discretion in determining appellant failed to demonstrate by clear and

convincing proof that he was unavoidably prevented from discovering the

witness or her statement within the time limitation of Crim.R. 33(B)); State

v. Dawson, 9th Dist. No. 19179 (July 14, 1999) (noting, in case affirming

trial court's denial of leave to file motion for new trial, that affidavits

submitted failed to give specific timeline of defendant's attempts to gain

exculpatory testimony or provide any reason why defendant could not

have discovered the evidence before the 120–day period had elapsed);

State v. Wilson, 7th Dist. No. 11 MA 92, 2012–Ohio–1505, ¶ 57 (“the

affidavits and the motion for leave do not contain enough information to

conclude that Wilson was unavoidably prevented from discovering the

evidence within the prescribed period”).

...

{¶ 30} Appellants in this case bore the burden of establishing, by clear and

convincing evidence, that they were unavoidably prevented from

discovering these witnesses earlier. Nicholson. We agree with the trial

court that appellants have not shown, through the affidavits submitted,

that the new witnesses were unknown or “placed beyond the range of a

reasonable investigation by the defense, much less beyond the Subpoena

power.” Upon review, appellants failed to prove by clear and convincing

evidence that they were unavoidably prevented from discovering, within

the prescribed time period, the evidence they are relying on to support

their motions. Accordingly, the trial court did not abuse its discretion in

denying appellants' amended motions for leave to file a delayed motion

for new trial.

State v. Ambartsoumov , 2013 WL 3488186 (Ohio App. 10 Dist. July 11,2013).

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Based on the above, there is no question that Petitioner failed to comply with a

state procedural rule. Further, as set forth at length by the state appellate court, the

state court enforced the procedural sanction. Consequently, the Court finds the first

two parts of the Maupin test to be satisfied. Third, the untimeliness of a motion for a

new trial is an adequate and independent state ground on which the state may rely to

foreclose habeas review. See Minor v. Warden, Lebanon Correctional Inst., 2014 WL

1276582, *14 (S.D. Ohio March 27, 2014). Because Petitioner has not addressed the issue

of procedural default, he has not made any showing of either cause to excuse the

default or actual prejudice. Similarly, Petitioner has not come forward with any

evidence demonstrating his actual innocence. Consequently, it will be recommended

that the motion for leave to amend be denied on grounds of procedural default of the

proposed claim.

VI. RECOMMENDED DISPOSITION

For the foregoing reasons, the Court RECOMMENDS that the petition for a writ

of habeas corpus be DISMISSED. Further, the Court recommends that the motion for

leave to amend be denied.

PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that party may, within

fourteen days of the date of this Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge of this Court shall

make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made. Upon proper objections, a

judge of this Court may accept, reject, or modify, in whole or in part, the findings or

recommendations made herein, may receive further evidence or may recommit this

matter to the magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review

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the Report and Recommendation de novo, and also operates as a waiver of the right to

appeal the decision of the District Court adopting the Report and Recommendation. See

Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

 /s/ Terence P. Kemp 

United States Magistrate Judge

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